MAKING THE RECORD
From MN Bench Book - Trial Procedures & Practices for Judges
I. THE JUDGE'S JOB VS. THE ATTORNEY'S JOB,
A. LAWYER: The lawyer should know his or her case in advance, know what exhibits will be introduced, what demonstrative evidence will be used, and what issues will develop and have to be decided. The lawyer should be protecting the record in case of a win to insure that the judgment will not be overturned.
B. TRIAL JUDGE: The trial judge as the impartial umpire participates with a calm (hopefully) and impartial view of the proceedings and is usually in the best position to oversee and protect the record. The judge is in the best position to manage the trial and to get the lawyers to protect the record when they forget. The trial judge wants an appellate court to have a full record to review to insure a complete appellate review of what happened and why.
II. REASONS FOR MAKING A COMPLETE RECORD
A. PROTECTION AGAINST REVERSAL: A large percentage of judicial rulings are discretionary decisions. Most discretionary calls are not overturned on appeal if the trial judge has adequately explained the reasons for the ruling on the record. Make findings when necessary, give reasons for your judgment calls and then explain your analysis of the issue you are deciding and you will rarely be reversed. In addition to protection of the appellate record, the most important reason for you to make good record is so the parties and everyone else listening can understand how you arrived at your decision.
B. BODY MOVEMENTS: Describing body movements can be critical to the record of same cases, particularly criminal cases where the victim or a police officer is demonstrating what a defendant physically did (e.g., a child victim showing where a defendant sexually touched her). Generally, the best practice is to try to have the witness describe what he or she is physically demonstrating. However, if you are dealing with a child witness, it is a better procedure to have counsel to describe the demonstration. If that doesn't work, the court should describe each movement as it occurs. Beware of not interjecting your personal views of the case if you have to describe what is happening.
C. DEMEANOR There are times in a courtroom that demeanor plays an important role in a decision. For example, if a witness "looks like he is lying" by his body language during court trial, and that fact plays a role in the court's credibility determination, the court should describe that demeanor on the record during its findings. If the defendant's demeanor plays a role in the sentence that the court imposes, the court should describe the demeanor and/or body language that was considered.
D. SIDEBAR CONFERENCES: Try to have the reporter present at sidebar conferences if you can. If this is not practical, keep a note pad on the bench and write down a summary of each sidebar as it occurs and describe when it occurred (e.g., the middle of direct examination of witness #3). At the next break, summarize the sidebar arguments and ruling, have the lawyers either supplement the description or agree to your description and then your record is preserved. Avoid substantive in-chambers discussions unless you have the court reporter present.
E. DISTANCES: Measure your courtroom and have a diagram created with all the measurements including measurements between witness and judge, witness and court reporter, witness and various counsel tables, witness and jury box, witness and back of courtroom, etc. Use these measurements when a witness testifies to a distance and use the courtroom to indicate the distance.
F. VOIR DIRE(Peremptory challenges and Batson challenges): If voir dire is not recorded, it can be very difficult to create the record of what occurred, much earlier-in voir dire, that would justify a non-racially or gender motivated peremptory strike. When voir dire is recorded, the reasons for a strike for cause can be examined in light of the actual record and statements of the prospective juror. If voir dire is recorded, make sure that the lawyers use the prospective juror's name or juror number each and every time a new person is asked a question. Otherwise, the record will be meaningless.
G. MOTION FOR MISTRIAL: If court is considering a motion for mistrial based upon something that occurred in the jury's presence, it is critical that the court make a complete record of what happened. For example, if a lawyer asked a totally inappropriate and improper question, the court should describe the tone it was asked in, the mood of the courtroom at the time, if appropriate, the physical reaction of the jury to the question, etc.
H. CONTEMPT: Click on CONTEMPT to go to the section on contempt. When something happens in the courtroom, describe it. If a defendant displays an obscene gesture, put it on the record. If someone curses under his or her breath and the court reporter misses it, put it on the record. If a defendant gets into a physical fight with your bailiffs and you and your reporter are not endangered, describe everything that is happening as it is happening. That record is then preserved for you if you need to use it and for any other resulting litigation that may occur later.
I. JUDGE'S RESPONSE TO DISRUPTIVE DEFENDANT: The trial judge should make a record of the behavior of a disruptive defendant and the judge's escalating efforts to control it. Making a record is important because if the final response of the judge to a disruptive defendant is to gag or remove the defendant from the courtroom, the appellate court will look closely at the defendant's behavior and the judge's efforts to control it short of the final step of gaging or removal. Because of the constitutional right of a defendant to participate in his or her trial, removal raises serious constitutional concerns. The judge's efforts will be affirmed if all of the non-removal steps have been documented.
J. EXHIBITS: At the end of the testimony, go through the exhibit list on the record. Be sure there is a ruling on the record as to each exhibit (e.g., admitted without objection, admitted with objection for the following reasons, not admitted for the following reasons). Everything should be decided before the jury goes out to deliberate.
H. JURY INSTRUCTIONS CONFERENCE: Be sure to put the instructions you will be giving on the record in advance. Let the lawyers make their record as to their agreement or disagreement with the instructions and the reasons for their objections. Also, put on the record any stipulations or objections as to the form of the verdicts.
GENERAL RECOMMENDATIONS ON MAKIN THE RECORD
1. When you observe something (rather than hear it going on it the courtroom) that you think is or could later be relevant, describe in on the record immediately after it happens. When in doubt, put it on the record.
2. Always put any discussions or decisions occurring off the record on the record as soon as possible when people’s memories are fresh.
3. Keep a note pad on your bench to keep track of items that need to be resolved later or put on the record.
4. At the end of the day of a trial or prolonged hearing, ask each counsel “Is there anything we need to put on the record today?”
5. Always try to articulate the reasons for your rulings for the record and for the parties.
This section is based on materials prepared by Justice Janine P. Geske