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REGULATION OF ATTORNEYS AT TRIAL - MN Bench Book - Trial Procedures & Practices for Judges
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REGULATION OF ATTORNEYS AT TRIAL

From MN Bench Book - Trial Procedures & Practices for Judges

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1. A DISTRICT COURT HAS A “RESPONSIBILITY IN OVERSEEING AND REGULATING COURTROOM CONDUCT AND PROCEDURE DURING TRIALS, INCLUDING CRIMINAL TRIALS.” [1]

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

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.<b> [2]

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

A. Speaking in the Active Voice

B. Informing the attorneys of the trial and courtroom procedures you want them to

  follow (form of objections, movement in courtroom, approaching witnesses,
  Etc) before the start of testimony.

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

<b>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. [3]

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 [4]
  1. State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006)
  2. State v. Salitros, 499 N.W.2d 815 (Minn.,1993)
  3. State v. Hansen, A06-1901, (Minn. Ct. App.2006)Unpublished Opinion
  4. State v. Breaux, 620 N.W.2d 326, 333 (Minn.App.2001),Poston v. Colestock, 540 N.W.2d 92, 94 (Minn.App.1995)