ssia. I noticed in the most recent 48 Hours Mystery that the prosecutor kept having to ask the Judge for permission to approach the witness stand. I’ve known they had to do this for a long time, but why? Why can’t they just walk up there and ask them something?
It’s a matter of respect to the judge. The judge controls the courtroom, and some judges have very strict rules about where counsel may stand or walk. So before approaching the witness or the judge, a respectful lawyer asks the judge.
Also, in a jury trial, the jury typically grows fond of the judge, so it’s only smart to defer to the judge (the jury likes that).
One more thing: the “well” is the area of the courtroom in the middle of the room, bounded usually by the lawyers’ tables, the judge’s bench, the clerk’s desk and the jury box. Lawyers are not permitted to walk into the well, and so you’ll see some funny situations where a lawyer asks to approach, is given permission, but then instead of walking directly to where she needs to be, she skirts the edges of the room. Strange, but there you have it. Rumor says that judges are scared of lawyers, and never likes to see a lawyer coming directly at them.
As well, there’s an intimidation factor. For a lot of witnesses, being in court is an unusual and intimidating situation. Having a lawyer just walk straight up to them while examining or cross-examining can be a stress-inducing factor, and it’s up to the judge to keep that from happening. If a lawyer needs to get close to a witness, for instance, to point to a specific point in a document that’s relevant to a question, it’s good practice for the lawyer to ask the judge for permission to approach.
Seems to me that it’s a way of preventing some head games by lawyers who would otherwise combine aggressive questioning with aggressive body language, really getting in the face of a witness. Keeps the courtroom a little more civilized, seems to me.
Which essentially is what the previous poster just said.
They can’t come in unless invited. Or maybe that’s vampires…
there is a difference?
Let me suggest that it is an effete, California affectation that has lately become popular with young lawyers and judges who were reared in front of a television and accept anything they see on the blue screen. It also feeds a judge’s ego – “Oh, please, your eminence, may I have your permission to do my job.” As a practical matter if a lawyer needs to get close to a witness, to hand the witness an exhibit, to look over a witness’s shoulder while the witness marks an exhibit, the lawyer will. If the lawyer abuses it the judge will stop him.
I suppose there are some judges somewhere that require this sort of silliness, but there are officious jerks in every trade. One of the hardest things to teach a young lawyer is that the lawyer, not the judge, tries the case. One of the hardest things to teach a new judge is that the lawyer, not the judge, tries the case.
Don’t you feel e.g. in rape cases that a defence lawyer standing right in front of the victim barking questions about how she consented is undesirable?
I think it is a security protocol to protect the judge. The judge and bailiff do not want anyone approaching the bench without notice. The bailiff’s first duty is to protect the judge.
There are other similar rules in courts, such as an attorney cannot have an open briefcase on the table, especially if the lid of the briefcase is facing the judge (blocking the judge and bailiff from seeing what’s inside). I have seen bailiffs remind counsel that all briefcases go on the floor.
Is it true that in Commonwealth countries (UK, Canada, etc) barristers aren’t allowed to appoach the witness at all? Don’t they need to stand at their assigned tables and pass documents throught the court usher?
In my practice both in Washington and in Montana, there were judges who expected attorneys to stay behind their table or behind the lecturn unless they had obtained permission to approach the bench, witness, or jury. Maybe they were all a bunch of effete California judges, I don’t know. Others allowed much more flexibility and you can go where you want, so long as you don’t abuse the privilege.
The key, if you are in trial with a judge you don’t know, is to corral his or her clerk and ask what the judge’s rule of the court are: May I present from the well? May I approach the witness without asking for permiission every time? Where can I set up exhibits? To whom do I hand exhibits for entry into the record? Are there different rules for opening and closing? (These are presentations to the jury, and some judges will allow you to present from the well, directly to the jury, even if they won’t allow you in the well to examine or cross witnesses.) If you find out in advance, you are not risking being reprimanded in open court in front of your jury.
Some judges do not like lawyers wandering around their courts. There are a mix of legitimate reasons and egoism to support that. As a lawyer, it’s best to find out the rules before your trial starts.
In Canada we pass documents to the court clerk, who distributes to the judge and witness. We stand when addressing the court and when questionning a witness. We can stand where we like, be it at the table or at a podium. Podium placement involves finding a place where we can clearly address both the judge, the jury, and the witness, while at the same time being able to display items or show videos. Although we are free to wander about when questioning, and sometimes have to to help witnesses get to the right document, we take care to be on-mike when actually opening our mouths, thus we usually speak from the table or podium. We sit when the opposition is doing its thing. Objections are usually handled by was of simply and quietly standing up to alert the judge of a problem, and waiting for the judge to let us voice the objection, however, if the opposition gets too far out of hand, we may decide to stand up and vocally object.
I don’t know if wireless mikes are in use up here. In my region they are not (and believe it or not, they are still recording using tape rather than digital recorders in my region). I expect that some barristers might wish to move about a bit more if they used a wireless mike, but I don’t know how some of the judiciary might take to it. In any event a wireless mike would let us get on with the questions a little quicker rather than having to clam up when moving to the witness to fuss wth documents.