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Difference between revisions of "REGULATION OF ATTORNEYS AT TRIAL" - MN Bench Book - Trial Procedures & Practices for Judges
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Difference between revisions of "REGULATION OF ATTORNEYS AT TRIAL"

From MN Bench Book - Trial Procedures & Practices for Judges

(Explanation)
Line 11: Line 11:
 
A. Speaking in the Active Voice
 
A. Speaking in the Active Voice
 
===Explanation===
 
===Explanation===
 +
Activating Your Active Voice
 +
by Randy J. Harvey
 +
Sentences should be like a woman's dress. Long enough to cover the subject, but short enough to be interesting.
 +
Randy Harvey with apologies to Anonymous
 +
The human brain understands and processes direct, simple language quickly. The mind is structured to process patterns of speech quickly and efficiently. When sentences are constructed from, subject, verb, and object, the brain processes the meaning directly. However, if you change the order to object, verb, subject, the brain has to hold the object and verb in memory until the subject is identified. When the subject is identified the brain can construct the meaning. The “Subject, Verb, Object (“SVO”) construction is “Active Voice.” The “Object, Verb, Subject” (“OVS”) construction is the “Passive Voice.”
 +
Let's look at examples:
 +
Active Voice SVO
 +
Mary picked flowers.
 +
subject verb object
 +
 +
Passive Voice OVS
 +
Flowers were picked by Mary.
 +
object verb subject
 +
B B
 +
Both of these sentences mean the same thing. They communicate an image of Mary picking flowers.
 +
The huge differences between the two sentences are:
 +
• The active voice sentence is easier to say;
 +
• It is said more quickly with fewer words; and
 +
• It does not require the brain to retain the object and verb (retention) before it can complete the mental image by including the subject.
 +
In an active voice sentence the subject acts. In a passive voice sentence the subject is acted upon by something. Notice also in the passive voice sentence the writer had to add to “Be Verbs.” Perhaps you will recall from high school English that the “be verbs” are: is, are, am, was, were, been. These “be verbs” can be expressed in “tenses” related to the times when they occur: present, past, and future. There are other tenses as well be are beyond the purpose of our discussion here.
 +
The passive voice is difficult to understand and obscures clear messages from speakers and writers. Unless you want to hide your meaning and obscure something you are trying to say, speak in the “active voice,” SVO. So what does this mean for speakers?
 +
Speakers need to make every word count during their allotted speech time. Effective speakers do not waste words and they are acutely aware of their need to manage the images playing in their audience’s mind. If the audience has to hold objects and verbs in their mind until you give them the subject, they often do not hear your next sentence.
 +
The more you use the passive voice the more lost your audience becomes—they are struggling to understand your words and miss your message.
 +
When you speak using the active voice, the audience processes your words almost simultaneously as you speak allowing them to keep up with your message. The goal is not just to have them keep up with you. Your goal is to have them pondering the mental images you are creating during your speech and to visualize themselves in your speech. You want them to smell the smells, hear the sounds, see the bright colors, experience the emotion.
 +
The passive voice detracts from these experiences because the brain has to diagnose the meaning of the words, put the puzzle together and then try to find a mental image that supports the message. Using the passive voice is like spilling hot coffee in your lap on an unfamiliar road: it forces the audience to focus on other things that the road you are laying out ahead of them.
 +
See if you notice a difference:
 +
Passive Voice Active Voice
 +
 +
Flowers were picked by a young girl. The young girl picked flowers.
 +
 +
The stranger’s presence was made known by a barking dog. A barking dog made known the stranger's presence.
 +
 +
To her Papa, the young girl ran for safety. The young girl ran to her Papa for safety.
 +
 +
Say the two examples out loud, or perhaps, record them and listen to them. Which one is easier to say? Which one is easier to understand? Which one allows you to see clear images in your mind’s eye of what is going on?
 +
If you struggle with understanding the passive voice, think about how your audience reacts. Especially, as you keep talking they struggle to keep up and eventually give up and wait for your speech to be over.
 +
Speak, write and present in the active voice and you'll see immediate and dramatic differences in how your audience reacts.
  
 
B. Before the start of testimony informing the attorneys of the trial and courtroom procedure
 
B. Before the start of testimony informing the attorneys of the trial and courtroom procedure

Revision as of 08:59, 7 July 2011

1. TRIAL COURTS HAVE A GRAVE RESPONSIBILITY IN OVERSEEING AND REGULATING COURTROOM CONDUCT AND PROCEDURE DURING TRIALS, INCLUDING CRIMINAL TRIALS. A TRIAL COURT MUST MAINTAIN ORDER IN THE COURTROOM. [1]

2. A JUDGE SHALL REQUIRE ORDER AND DECORUM IN ALL PROCEEDINGS BEFORE THE JUDGE.[2]

3. THE TRIAL JUDGE IS NOT A PASSIVE MODERATOR AT A FREE-FOR-ALL. THE TRIAL JUDGE IS THE ADMINISTRATOR OF JUSTICE AND HAS AN AFFIRMATIVE OBLIGATION TO KEEP COUNSEL WITHIN BOUNDS AND TO INSURE THAT THE CASE IS DECIDED ON THE BASIS OF RELEVANT EVIDENCE AND THE PROPER INFERENCES THEREFROM, NOT ON THE BASIS OF IRRELEVANT OR PREJUDICIAL MATTERS. [3]

Attorneys want to know how a judge conducts trials in his or her courtroom. There are many subtle differences in how judges conduct trials. The more information attorneys have about how the judge conducts a trial, the easier it will be for the attorneys to conform their trial conduct to the judge's expectation. The judge can use the jury to direct attorney's behavior. A good example is when an attorney thanks a judge for an evidentiary ruling. It is not uncommon for an attorney to thank a judge after the judge overrules an objection made by the attorney. A simple response by the judge to such a "thank you" could be to say, from the bench in the presence of the jury, say; "Counsel it is not necessary to thank me for my rulings." The attorney now knows the jury KNOWS the attorney is not to thank the judge for evidentiary ruling. Knowing that, it is less likely the attorney will thank the judge for future rulings.

4. METHODS AND PROCEDURES FOR REGULATION OF ATTORNEYS IN THE COURTROOM

A. Speaking in the Active Voice

Explanation

Activating Your Active Voice by Randy J. Harvey Sentences should be like a woman's dress. Long enough to cover the subject, but short enough to be interesting. Randy Harvey with apologies to Anonymous The human brain understands and processes direct, simple language quickly. The mind is structured to process patterns of speech quickly and efficiently. When sentences are constructed from, subject, verb, and object, the brain processes the meaning directly. However, if you change the order to object, verb, subject, the brain has to hold the object and verb in memory until the subject is identified. When the subject is identified the brain can construct the meaning. The “Subject, Verb, Object (“SVO”) construction is “Active Voice.” The “Object, Verb, Subject” (“OVS”) construction is the “Passive Voice.” Let's look at examples: Active Voice SVO Mary picked flowers. subject verb object

Passive Voice OVS Flowers were picked by Mary. object verb subject

	B	 	B	 

Both of these sentences mean the same thing. They communicate an image of Mary picking flowers. The huge differences between the two sentences are: • The active voice sentence is easier to say; • It is said more quickly with fewer words; and • It does not require the brain to retain the object and verb (retention) before it can complete the mental image by including the subject. In an active voice sentence the subject acts. In a passive voice sentence the subject is acted upon by something. Notice also in the passive voice sentence the writer had to add to “Be Verbs.” Perhaps you will recall from high school English that the “be verbs” are: is, are, am, was, were, been. These “be verbs” can be expressed in “tenses” related to the times when they occur: present, past, and future. There are other tenses as well be are beyond the purpose of our discussion here. The passive voice is difficult to understand and obscures clear messages from speakers and writers. Unless you want to hide your meaning and obscure something you are trying to say, speak in the “active voice,” SVO. So what does this mean for speakers? Speakers need to make every word count during their allotted speech time. Effective speakers do not waste words and they are acutely aware of their need to manage the images playing in their audience’s mind. If the audience has to hold objects and verbs in their mind until you give them the subject, they often do not hear your next sentence. The more you use the passive voice the more lost your audience becomes—they are struggling to understand your words and miss your message. When you speak using the active voice, the audience processes your words almost simultaneously as you speak allowing them to keep up with your message. The goal is not just to have them keep up with you. Your goal is to have them pondering the mental images you are creating during your speech and to visualize themselves in your speech. You want them to smell the smells, hear the sounds, see the bright colors, experience the emotion. The passive voice detracts from these experiences because the brain has to diagnose the meaning of the words, put the puzzle together and then try to find a mental image that supports the message. Using the passive voice is like spilling hot coffee in your lap on an unfamiliar road: it forces the audience to focus on other things that the road you are laying out ahead of them. See if you notice a difference: Passive Voice Active Voice

Flowers were picked by a young girl. The young girl picked flowers.

The stranger’s presence was made known by a barking dog. A barking dog made known the stranger's presence.

To her Papa, the young girl ran for safety. The young girl ran to her Papa for safety.

Say the two examples out loud, or perhaps, record them and listen to them. Which one is easier to say? Which one is easier to understand? Which one allows you to see clear images in your mind’s eye of what is going on? If you struggle with understanding the passive voice, think about how your audience reacts. Especially, as you keep talking they struggle to keep up and eventually give up and wait for your speech to be over. Speak, write and present in the active voice and you'll see immediate and dramatic differences in how your audience reacts.

B. Before the start of testimony informing the attorneys of the trial and courtroom procedure you want them to follow;

  • Form of objections,
  • Movement in courtroom,
  • Approaching witnesses,

C. Going over trial and courtroom procedure in presence of jury.

D. Conferences at the bench.

E. Calling the attorneys attention to behavior that you want them to discontinue.

F. Obtaining agreement of attorney to discontinue behavior.

G. Chambers conferences.

H. Informing attorney(s) that if inappropriate behavior continues you will admonish them in presence of jury.

I. Issuing a curative instruction to jury informing them of improper behavior of attorney.

J. Informing attorney, if behavior continues, subsequently imposing court costs.

K. Informing attorney, if behavior continues, that attorney will be held in contempt.

L. Taking a short recess.

M. Explaining the possibility of, if behavior continues, declaring a mistrial

N. If negative objectionable behavior is engaged in by the prosecutor, explain possible double jeopardy bar to retrial if mistrial granted.

O. Threatening to require misbehaving attorney to apologize to jury.

P. Requiring the misbehaving attorney to apologize to the jury

5. REGULATION OF BEHAVIOR OF PROSECUTOR " Finally, we feel compelled to note that even though the prosecutor’s misconduct was harmless, we do not condone the prosecutor’s complete disregard of the district court’s sequestration order (prosecutor informed a state witness what a previous witness had testified to). . and his comment—“I can tell my witnesses whatever I want”—was particularly offensive and disrespectful to the district court. The government’s right to charge its citizens with crimes, put them on trial, and, if convicted, seek harsh punishment, only comes through a judicial system that in both reality and appearance is balanced, fair, and respectful of individual rights. Absent that perception, in particular, the government suffers a loss of credibility with its citizens. here, the prosecutor belittled the very process that afforded him the right to proceed with this trial in the first place. [4]

6. REGULATION OF DEFENSE ATTORNEYS The district court can issue an appropriate curative instruction to the jury appropriately identifying misconduct committed by defense counsel or the prosecutor [5]

  1. State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006),Minn. R. Gen. Prac. 2.02,Code of Judicial Conduct, Canon 3.A(3).
  2. id.
  3. State v. Salitros, 499 N.W.2d 815 (Minn.,1993)
  4. State v. Hansen, A06-1901, (Minn. Ct. App.2006)Unpublished Opinion
  5. State v. Breaux, 620 N.W.2d 326, 333 (Minn.App.2001),Poston v. Colestock, 540 N.W.2d 92, 94 (Minn.App.1995)