I’ve sometimes seen judges in the L&O franchise gently reminding the defense attorney that he or she should be objecting to something that the prosecutor has just said.
Is it common for judges to do this, and how far can they take it? If, for instance, a defendant has a really lax or inexperienced attorney who misses things like the leading of a witness, hearsay, reference to something not in evidence, and a host of other breaches of procedure, should the trial judge be objecting for him and ruling the prosecutor out of order, or could that be seen as unfairly influencing a jury (whose decision could well be affected by seeing a judge so seemingly zealous on behalf of a defendant)?
And I guess a follow up question would be… If this happens alot can a judge simply dismiss a lawyer, and demand state appoints a new one, if they are so incompetent as to deny the defendant a fair trial ?
I’m not a judge, but I have done a lot of work as an administrative hearing officer. Usually in these cases I am both the “judge and jury” in that I make the determinations as to legal questions and make finding of fact. Given that a jury is not involved, if a party asks an objectionable question and the other party does not object I have few options. If it’s something minor or insignificant, I’ll let it go, but make a mental note not to consider the inadmissible bit of evidence. If it’s anything more than that I’ll interrupt and tell the parties the evidence offered is inadmissible and why I think so.
This situation comes up a lot in hearings where one of the parties isn’t represented by an attorney. It’s also less critical in a non-jury case – I often allow a fair amount of inadmissible evidence to be presented, but then make a ruling afterwards about exactly what may be considered. I try to be extremely scrupulous about only considering admissible evidence in my final decision. I’m not sure that jurors make that distinction, thus the necessity for being more careful about not allow them to hear inadmissible evidence.
It’s not required, and it’s not necessarily smart, for counsel on either side to make an objection just because it’s available. We’ve discussed this before, not that that helps right now. There are several good reasons not to object:
It can prejudice the jury if they think a lawyer is trying to prevent them from hearing evidence.
Sometimes, you might want the evidence to come in.
Sometimes letting the evidence in will “open the door” to other evidence that you want to introduce, but which would otherwise be inadmissible.
Objecting to things like the form of the question can actually emphasize the evidence. The objection stops the narrative, and if it’s an objection to form, the question probably be asked again (to fix the form problem). That means the jury hears the question twice–once before an abrubt stop in the story and once after. If your objective is make the evidence less persuasive, objecting might be the last thing you want to do.
That said, most jurisdictions have a rule like this:
Rule 611. Mode and Order of Interrogation and Presentation
I have served on several juries. In one case the District Attorney was inept (at least, that is the conclusion I drew from the judge’s actions toward her). Most of the time the defense attorney objected and the judge instantly said, “Sustained.” However, many other times the judge simply interrupted the proceedings before the defense attorney even objected. One time, in response to an objection from the defense, the judge said, “If you didn’t object I was going to.” It seemed clear that the judge has wide leeway to correct anything she finds objectionable, whether or not the opposing attorney says anything.
The rules are a bit different for retained counsel (a lawyer that the defendant has selected and paid for), btw: Second Circuit Blog ( entry titled: Retained Counsel Are Unique, but Appointed Counsel Are Fungible)
I’ve never seen a lawyer forced off a case by a judge mid-trial, although I’ve seen many excused from a case before trial - either because of a breakdown in communication between lawyer and client, because client hasn’t paid the lawyer (AKA “Waiting for Mr. Green to make an appearance”), or because of an unsolveable scheduling conflict or other problem. If a lawyer were that incompetent during trial, the court would have discretion to appoint more skilled co-counsel, grant a short continuance to find another lawyer, or even to order a mistrial under some circumstances.
Judges may object to questions, and some do quite a bit. One battleaxe of a judge I had the repeated misfortune of appearing before as a prosecutor would often bark “Sustained!” out of the blue, surprising everyone at least once per trial. On the other hand, one of my favorite judges once zinged me by saying “Nice to hear from you, Elendil’s Heir!” when opposing counsel finally asked that one question I couldn’t stomach. The judge obviously thought I should’ve been objecting more, but wasn’t going to jump in herself.
A friend of mine was once in a bench trial with a judge who had a lot of questions for a witness. The lawyer finally felt compelled to object to a particular question. The judge frowned, mulled it over briefly, and then said with a smile, “Sustained!” to his own question. Heh.
I rarely preside over jury trials, but in my bench trials I’ll generally allow any question that might reasonably lead to useful information. I’m more likely to sustain objections to questions that lead or badger a witness, have been already asked and answered, or are clearly irrelevant.
I was a juror in a federal blackmailing case. Even I, lay person that I was, was surprised when one witness testified about something that somebody else had said someone told her. The defense did not object, and I can only assume the attorney missed it. The judge let it go.
The other thing I noticed was that when objections were called, the attorneys would go up to the judge for a whispered conference, then the judge made his ruling. I think this makes more professional sense. In an episode of L&O I saw yesterday, Jack McCoy was yelling about something and the defense attorney actually said, “Your Honor, this isn’t fair!” I would think the attorneys would not want to air their fight in front of the jury.
Unless objection arguments must be on record?
Elendil, what’s the One Question You Can’t Stomach?
Some judges only want to hear the word “Objection,” and if they can figure it out from that (90+% of the time), they’ll just rule. Other judges will ask for a sidebar if they’re not sure of the basis of the objection, and don’t want to have a possibly-prejudicial discussion in front of the jury. (The court reporter is supposed to go to the sidebar, too, and can make a record if it’s such a key objection that the case might turn on it, or the court of appeals might reverse on it). I don’t mind lawyers adding a word or two, as in, “Objection, hearsay,” or “Objection, leading,” but usually don’t want or need extended discussions of the basis for objections. I’ve even seen judges who were inclined to sustain the objection but then didn’t like the basis suggested by the lawyer, so they overrule it.
The One Question I Can’t Stomach? Hmmm. Other than obvious logic traps like “Have you stopped beating your wife?” (correct answer: “I never started”), I hate questions that begin “As you said earlier…” or “So, to repeat…” You made your point earlier, counselor, now move on. Asked and answered. :rolleyes:
While on jury duty, we once had the judge call the lawyers up to the bench and then send us into the jury room. It wasn’t until the end that we found out that the prosecution was admonished for “accidentally” revealing that the defendant was not an American citizen.
I sat at the table with defense counsel during a four-month criminal trial (I had worked on the years-long investigation so they wanted me there), and I recall both sides being admonished several times for what the judge referred to as “speaking objections” – meaning that he didn’t want the lawyers detailing the nature of their objections in front of the jury. There were many, many sidebars during that case; some of them rather lengthy.
There’s a (retiring at end of term) work comp judge we appear in front of regularly down here who does that too, even though there are hardly any (usually no) voiced objections during an administrative hearing.
It’s generally a good sign that he dozed off during whatever was just being said and the attorney currently speaking needs to give a precis of whatever he said in the last two minutes
