I’m going to tell you how to diplomatically tell a judge that he (that’s used as an inclusive pronoun) has screwed up. You can use this information in your writing when you want your character–whether it’s a judge, lawyer, or party to the lawsuit–to realize that something bad has gone wrong during a lawsuit.
This article covers only criminal jury trials.
If you use the methods outlined here, you’ll no doubt get fewer nasty letters from lawyers complaining that you’ve mangled the legal system, but this information is being given as is, with all faults, and there are no warranties, express or implied. (I’ve been waiting years to use that useless phrase.)
- Know your stuff. I’ve made my share of errors and have received nasty reviews from appellate courts. But your judge should know his stuff. If he makes a mistake on the admission of evidence, then you must do your homework and find out what the correct ruling would be. Let’s say that your jurisdiction does not allow a spouse to testify against the other spouse. The prosecutor in your case has a wife that’s dying to spill the beans on her husband (the defendant). The defendant objects but the court (that’s what lawyers call the judge when they’re trying to be nice) allows it. You will have to learn about privileged communications in your state and why the judge’s ruling is wrong.
- Ask for a sidebar. That’s when the judge and lawyers discuss something out of the hearing of the jury but in front of the jury. Juries are human and when you do that, the jury will think that what just happened (i.e., the error the judge made) is a lot more important than it really is. If you want your character to bring attention to the error, have him ask for a sidebar. If you want him to minimize the error, have him ask for a short recess.
- Your character must always be respectful towards the judge, regardless of what kind of idiot you have sitting on the bench. Once a judge makes a ruling in the courtroom, all argument ceases, unlike what I’ve witnessed in television shows, movies, and books. Muttering and eye rolling doesn’t impress the judge, much less continued arguing.
- If the error is that the judge sustained an objection to a question that is clearly okay to ask, then have your character rephrase the question. If your character is the prosecutor and he asks, “Officer, was the defendant drunk?” and the defendant’s objection is sustained, have the prosecutor start over. “Officer, did you have reason to believe the defendant had consumed alcohol?” And so on.
- Always make a record. One of the best things I learned in judges’ college–yes, there really are such things–was to make a record. If your character wants a bloody iron pipe entered into evidence and the court sustains the other party’s objection, then he should make an offer of proof. (This is often done outside the hearing of the jury.) The lawyer who wants the pipe entered into evidence will have a chance to show and tell the judge why the pipe should be entered into evidence. Unless your character is the prosecutor (most of the time, a prosecutor can’t appeal a not guilty verdict) and the judge still refuses, then, assuming your character is convicted, he will have a record to show the court of appeals.
Writers are constantly asking me legal questions for their stories. I’m happy to answer them, but the best answer is usually, “Ask a lawyer or judge in your area.” If you live in a big city, that may be a bit harder than living in a rural area where people are more likely to know each other. But, for example, if you live in a big city, go visit the courthouse and watch a few criminal jury trials. If you’re polite and have a business card showing the judge or a lawyer that you’re a writer, they may be willing to answer hypothetical questions.
(The information in this blog comes from The Honorable Robert W. Gettleman’s article in the American Bar Association’s Section of Litigation’s Practice Essentials articles, the online version being available on http://apps.americanbar.org/abapubs/lrc/pdfs/gettleman.pdf and from my twenty years on the trial bench and five years as an administrative law judge.)
Bill Hopkins is retired after beginning his legal career in 1971 and serving as a private attorney, prosecuting attorney, an administrative law judge, and a trial court judge, all in Missouri. His poems, short stories, and non-fiction have appeared in many different publications. He’s had several short plays produced. A book of collected poetry, Moving Into Forever, is available on Amazon. Bill is a member of Mystery Writers of America, Dramatists Guild, Horror Writers Association, Missouri Writers Guild, and Sisters In Crime. Courting Murder is his first mystery novel.
(The Killer Nashville Guest Blog series is coordinated by KN Executive Director Beth Terrell (http://www.elizabethterrell.com/). To be a part of this series, contact Beth at firstname.lastname@example.org.)