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From MN Bench Book - Trial Procedures & Practices for Judges

A jury trial is a very complex procedure and process. Even trial lawyers, who become judges, don't realize this until they take the bench. Trial attorneys are focused on the witness, whether it is theirs or their opponents. Judge, on the other hand, have to pay attention to the witness, the jury, the people observing the trial, all of the parties at counsel table, the movement and handling of physical evidence in the courtroom and much more. The trial judge must monitor many more activities in the courtroom compared to the narrower focus of the attorneys trying the case. While many of the following trial procedures and practices are set out in a rule, statute or case decision many are not, even though the issues that the practice or procedure is designed to deal with frequently occur in trial. The practices and procedures described here were developed and adopted by judges to aid them in the management of trials, reduce reversible error and to increase the fairness of a trial. Often these practices and procedures are not written down anywhere, they are passed on from a senior experienced judge to a new judge informally by word of mouth. There are few if any works that gather in one place all of the trial procedures, practices and other techniques judges use to regulate the trial process so that it is fair and efficient. This Electronic Bench Book incorporates many of these trial management practices and procedures in an on-line format. It is designed to allow judges to get a quick "answer" to issues that arise immediately prior to or during trial. A judge can have this document open on his or her laptop on the bench and, using the search function, search for a topic or issue. The electronic bench book then jumps directly to a discussion of the issue and ways to deal with it. The format of this document is to state the basic rule or procedure and then give a short discussion of the rule, procedure or practice.

This document was prepared by Professor Steve Simon at the University of Minnesota Law School with the assistance of Chelsea Becker and Glen Anderson.

JUDGES ARE ENCOURAGED TO SUBMIT ADDITIONAL TOPICS OR CHANGES TO EXISTING TOPICS TO STEVE SIMON AT SIMON001@UMN.EDU

TO GO TO A TOPIC, Click on a topic to go to the discussion of that topic

TO RETURN TO THE MAIN PAGE FROM A TOPIC PAGE, Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” in the brown bar at top of a topic page to return to main page

SEARCH FUNCTION - A topic, procedure, practice, or evidentiary rule can be found by using the search box on the left hand side of the page.

SPECIAL FUNCTIONS OF THE TRIAL JUDGE
ABA PROFESSIONAL STANDARDS

Standard 6-1.1. General responsibility of the trial judge(a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.

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.[1]

I. JUDICIAL TRIAL SKILLS

The following is a list of trial skills and knowledge areas that a judge should have in order to conduct a fair and efficient trial

  1. PRE-TRIAL PROCEDURES
  2. INSTRUCTIONS TO ATTORNEYS RE TRIAL PROCEDURE & COURTRROOM DYNAMICS
  3. SELECTING THE JURY.
  4. METHOD OF COMMUNICATING TRIAL PROCEDURES TO ATTORNEYS AND JURY
  5. RULES FOR EXAMINING WITNESSES
  6. RULINGS ON EVIDENCE
  7. HANDLING PHYSICAL EXHIBITS See/click onRULES FOR HANDLING PHYSICAL EVIDENCE AT TRIAL
  8. REGULATION OF FIREARMS, DANGEROUS OBJECTS AND DISTURBING EVIDENCE IN THE COURTROOM
  9. CONFERENCES AT BENCH See/click on BENCH CONFERENCES
  10. EFFECTIVE COMMUNICATION IN AND CONTROL OF THE COURTROOM
  11. MISTRIAL CRITERIA
  12. RELATIONSHIP WITH JURY
  13. RELATIONSHIP TO WITNESSES
  14. RELATIONSHIP TO SPECTATORS
  15. IDENTIFYING AND DEALING WITH RACIAL AND GENDER BIAS IN THE COURTROOM
  16. SITUATIONAL AWARENESS
  17. MANAGEMENT OF PHYSICAL COURTROOM SPACE

II. JURY TRIAL GUIDE; PRE-TRIAL THRU VERDICT

These materials were prepared by Judge Alan Pendleton

  1. BEFORE TRIAL
  2. START OF TRIAL AND VOIR DIRE
  3. PRELIMINARY INSTRUCTIONS
  4. TRIAL PROCEDURE & OPENING STATEMENTS
  5. ORDER OF TRIAL/PRESENTATION OF EVIDENCE
  6. CAUTIONARY INSTRUCTIONS DURING TRIAL
  7. PROSECUTORIAL MISCONDUCT -- SAMPLES
  8. TRIAL OATHS
  9. RETURN OF VERDICT

III. JURY SELECTION

This section was prepared by Judge Gordon Shumaker Retired Associate Justice Minnesota Court of Appeals

A. PURPOSE OF VOIR DIRE,
B. THE RIGHT JUROR
C. GROUP CHEMISTRY JURORS AND JURIES
D. THE JUDGE'S ROLE
E. CONDUCTING VOIR DIRE
E. CLOSING THE COURTROOM FOR SENSITIVE QUESTIONS
F. IMPROPER VOIR DIRE
G. VOIR DIRE A SUMMARY
H. QUESTIONS TO ASK WHEN DEFENDANT IS A MEMBER OF A RACIAL OR ETHNIC MINORITY

IV. EVIDENCE ISSUES, TRIAL PROCEDURES & PRACTICES FROM THE JUDGE’S PERSPECTIVE

A. ISSUES TO BE DECIDED BEFORE TRIAL

  1. PRESERVING AN ISSUE FOR APPEAL
  2. PLEA NEGOTIATION AND AGREEMENTS
  3. GUILTY PLEA WHERE DEFENDANT DOESN'T REMEMBER THE INCIDENT--NORGAARD
  4. GUILTY PLEA WHERE DEFENDANT DENIES FACTS--ALFORD-GOULETTE PLEA
  5. VALID WAIVER OF THE RIGHT TO A JURY TRIAL
  6. STIPULATIONS; ELEMENTS, EVIDENCE OR FOUNDATION TO EVIDENCE, INSTRUCTION(S) AFTER ELEMENT STIPULATION
  7. RULE 609-IMPEACHING THE DEFENDANT WITH A PRIOR CRIMINAL CONVICTION
  8. RULE 404B-PRIOR BAD ACTS OF THE DEFENDANT
  9. RELATIONSHIP EVIDENCE-EVIDENCE OF RELATIONSHIP BETWEEN DEFENDANT AND VICTIM
  10. ALTERNATE PERPETRATOR EVIDENCE- TESTIMONY THAT SOMEONE OTHER THAN THE DEFENDANT COMMITTED THE CRIME
  11. WITNESS SEQUESTRATION
  12. RULES OF DECORUM
  13. FIREARMS AS EVIDENCE IN COURT: POLICIES AND PROCEDURES
  14. PRO SE DEFENDANT
  15. BATSON CHALLENGE TO PEREMPTORY CHALLENGE BASED ON RACE OR GENDER
  16. MAKING THE RECORD
  17. REGULATION OF ATTORNEYS AT TRIAL
  18. AVOIDING REMAND
  19. RASMUSSEN HEARINGS
  20. JOINT REPRESENTATION OF CO-DEFENDANTS IN A CRIMINAL CASE

B. EVIDENCE ISSUES

THE RULES OF EVIDENCE SHOULD BE CONSTRUED SO AS TO ADMINISTER EVERY PROCEEDING FAIRLY, ELIMINATE UNJUSTIFIABLE EXPENSE AND DELAY, AND PROMOTE THE DEVELOPMENT OF EVIDENCE LAW, TO THE END OF ASCERTAINING THE TRUTH AND SECURING A JUST DETERMINATION.[2]

  1. RULES OF EVIDENCE DO NOT APPLY TO PRELIMINARY DETERMINATION OF ADMISSIBILITY
  2. EVIDENCE PROCEDURES & RULES FOR HANDLING EVIDENCE OBJECTIONS
  3. FREQUENTLY MADE OBJECTIONS AND THE RULE THE OBJECTION IS BASED ON
  4. RULES FOR HANDLING PHYSICAL EVIDENCE AT TRIAL
  5. HANDLING OBJECTIONS-ATTORNEYS EXPECTATIONS OF JUDGES
  6. CHAIN OF CUSTODY ANALYSIS FOR PHYSICAL EVIDENCE
  7. STATUTORY FOUNDATION
  8. COMPETENCY OF WITNESSES
  9. PRIVILEGES
  10. ADMISSIBILITY OF COMPUTER AND BUSINESS RECORDS
  11. FOUNDATION FOR VIDEO RECORDING WITHOUT WITNESS WITH 1ST HAND KNOWLEDGE OF CONTENTS
  12. ADMISSIBILITY OF SCIENTIFIC EVIDENCE IN CRIMINAL CASES
  13. FOUNDATION OBJECTION SUSTAINED-OBJECTOR'S DUTY TO STATE GROUNDS
  14. CONSEQUENCES/SANCTIONS FOR FAILURE OF A PARTY IN CRIMINAL CASE TO PUT A NAME ON WITNESS LIST
  15. JUDGE INTERVENTION/OBJECTION TO STOP A WITNESS FROM ANSWERING A QUESTION IN THE ABSENCE OF AN OBJECTION
  16. OBJECTIONS
  17. VOIR DIRE TO LAY FOUNDATION FOR OBJECTION
  18. JUDGE ASKING QUESTIONS OF WITNESSES
  19. JURY ASKING QUESTIONS IN CIVIL OR CRIMINAL CASES
  20. JUDICIAL ROLE IN WITNESS EXAMINATION
  21. DISCRETIONARY EVIDENTIARY RULINGS
  22. ADMISSIBILITY OF E-MAILS AND SOCIAL MEDIA CONTENT
  23. DETERMINING ADMISSIBILITY
  24. THE ADMISSIBILITY OF HEARSAY STATEMENT IN CRIMINAL CASES
  25. CRAWFORD TREE FLOW CHART
  26. USE OF TRANSCRIPTS OF AUDIO RECORDINGS AT TRIAL TO AID JURY OR JUDGE IN UNDERSTANDING WHAT IS SAID IN THE RECORDING
  1. State v. Salitros 499 N.W.2d 815, Minn.,1993
  2. 102 Fed. R. Evid. 102

C. TRIAL PROCEDURE

  1. LIMITS ON VOIR DIRE
  2. OPENING STATEMENTS
  3. MANAGING THE JURY
  4. CRITICAL STAGE OF TRIAL--DEFENDANT’S PRESENCE REQUIRED
  5. WAIVER OF 5TH AMENDMENT RIGHT-DEFENDANT TESTIFYING/NOT TESTIFYING IN CRIMINAL CASE
  6. JURY VIEWING SCENE
  7. CURATIVE AND CAUTIONARY INSTRUCTIONS
  8. BENCH CONFERENCES
  9. MOTION FOR JUDGMENT OF ACQUITTAL ALLOWING THE STATE TO REOPEN AFTER A MOTION FOR JUDGMENT OF ACQUITTAL IS MADE
  10. EXCLUSION OF PUBLIC FROM COURTROOM DURING TRIAL
  11. SEQUESTRATION OF JURY DURING DELIBERATION
  12. DEFENDANT WANTS TO TESTIFY AND LIE
  13. CLOSING ARGUMENTS
  14. JURY INSTRUCTIONS IMMEDIATELY BEFORE DELIBERATION
  15. POST-TRIAL PRE-DELIBERATION PROCESS WITH ATTORNEYS AND JUDGE OR CLERK TO DETERMINE AND CONFIRM WHAT EVIDENCE WAS ADMITTED AND WHAT WILL GO TO JURY
  16. SPEAKING IN THE ACTIVE VOICE
  17. PROBATION VIOLATIONS

D. PROBLEMS THAT ARISE DURING TRIAL

  1. DISCOVERY VIOLATIONS BY THE PROSECUTION AND THE DEFENSE
  2. DEALING WITH THE DISRUPTIVE DEFENDANT & FORFEITURE OF RIGHT OF RIGHT TO BE PRESENT AT TRIAL
  3. SCHWARTZ HEARINGS; ADDRESSING CLAIMS OF JURY MISCONDUCT
  4. CONTEMPT
  5. MISTRIAL
  6. REGULATION OF ATTORNEYS AT TRIAL
  7. SLEEPING JUROR
  8. PROSECUTORIAL MISCONDUCT
  9. JUDICIAL RESPONSE TO BIAS STATEMENTS OF WITNESSES

E. JUDICIAL LANDMINES

Judicial Landmines

V. MINNESOTA NON-FELONY CRIMINAL PROCEDURE

  1. OVERVIEW
  2. MISDEMEANOR ARREST & CHARGING PROCEDURE
  3. COURT HEARINGS
  4. BEFORE TRIAL
  5. PLEA BARGAINING & SENTENCING AGREEMENTS
  6. DISPOSITIONAL ALTERNATIVES
  7. GLOSSARY OF SENTENCING TERMS

VI. ALCOHOL, CHEMICAL DEPENDENCY AND TREATMENT

For a review of the state of knowledge about alcohol use and abuse, the involvement of alcohol in crimes and chemical dependency treatment Click on

http://mnbenchbook.org/AlcDepTrmnt.html

VII. MINNESOTA TRAFFIC LAW

For a review of Minnesota Traffic Law click on

http://mnbenchbook.org/MNDrivingLaws.html

The laws concerning the operation of motor vehicles are in Minnesota Statute Chapter 169

The laws concerning DWI are in Chapter 169A

The laws concerning the issuance, regulation and removal of Driver's licenses are in Minnesota Statutes Chapter 171

VIII. PAYABLES -- LIST OF OFFENSES ON PAYABLES LIST

The payables list is a list of offenses created by the Minnesota Court system to allow the settlement of many statutory misdemeanors and petty misdemeanors without a court appearance. Payment of the fine and surcharge listed for any offense on the payables list is deemed to be a waiver of the defendant's trial rights and a plea of guilty.

As the payables list contains fines and surcharges only for all of the offenses listed on it, payment of the amount listed on the payables list for any given offense,even if the offense is a classified as a misdemeanor by stataute, is deemed to a plea of guilty to a petty misdemeanor. [1]

Any citation issued for a payable offense must contain language that payment of the fine listed on the citation is a waiver of the person's trial rights and is deemed to be a plea of guilty. Counties can establish their own payables list.


To see a an explanation of the payables list and links to the current year's payables list and fine amounts click on:

http://www.mncourts.gov/?page=1774

References:

  1. Minn. R. Crim Proc. 23.02

IX Managing the Civil Case From the Judge’s Perspective

This section was written by Aaron Simon, an attorney who practices in the Insurance Defense area

INTRODUCTION

These materials are designed to be a basic guide for Judges in managing civil cases. Nothing in this document is meant to override or supersede any of the rules of civil procedure or rules of general practice for the Court. This guide is only intended to help Judges become aware of some of the more common procedural aspects and issues that are common in a civil case. The intensity of a civil case and the amount of information involved in the case can be staggering. It is not uncommon for the document production in civil cases to be in the realm of 10,000 to 100,000 pages of documents. The dollar amounts in controversy can frequently be over $100,000 and are regularly in excess of $1,000,000. Attorney’s fees can be similarly as high. In a civil case there are often multiple parties, issues and claims. In a significant percentage of civil litigation, insurance is involved in some way.

The most important thing a Judge in a civil case can do is to take control of the case and set parameters for the parties involved. In civil cases do not be afraid to make decisions; the attorneys involved in these cases expect Judges to do this. In many civil cases you will need to use outside resources such as special masters. You may require extra work from the litigant’s attorneys. Many civil cases can be resolved completely or partially on summary judgment. Make sure each issue in a civil case is clearly and separately identified. A large percentage of civil cases are resolved short of trial.

  1. New Rule 1 of The Minnesota Rules of Civil Procedure
  2. Blocking the Judge to Civil Cases
  3. Initial Discovery
  4. Litigation Hold and Do Not Destroy Document Letters
  5. Discovery Issues and other Non-Dispositive Motions
  6. Motions for Summary Judgment and Other Dispositive Motions
  7. Mediation and other Alternative Dispute Resolution (ADR) Processes
  8. Pre-Trial Motions – Motions in Limine and Trial Brief
  9. Pre-Trial Conference
  10. Sample Trial Order
  11. Trial
  12. Post Trial Motions
  13. Special Masters
  14. Technology and Email
  15. Use the Attorneys Involved in the Case
  16. Complex Cases Minn. Gen. R. Prac. 113 and 146
  17. Law Clerks