NCJ Number
46808
Journal
Virginia Law Review Volume: 64 Issue: 1 Dated: (FEBRUARY 1978) Pages: 1-81
Date Published
1978
Length
81 pages
Annotation
LACK OF CONFIDENCE IN TRIAL ATTORNEYS HAS LED MANY TRIAL JUDGES OF BECOME MORE ACTIVE PARTICIPANTS IN THE LITIGATION. PERMISSIBLE AND IMPERMISSIBLE TECHNIQUES OF JUDICIAL INTERVENTION ARE OUTLINED.
Abstract
MANY SURVEYS BY BAR ASSOCIATIONS AND OTHERS HAVE FOUND THAT IN GENERAL, TRIAL JUDGES HAVE BEEN LOSING CONFIDENCE IN THE ABILITY OF THE ATTORNEYS WHO PRACTICE BEFORE THEM. SOME SURVEYS HAVE FOUND THAT JUDGES RATE AS MANY AS 50 PERCENT OF THE TRIAL ATTORNEYS ARE LESS THAN ADEQUATE. THIS HAS LED JUDGES TO INTERVENE FREQUENTLY IN TRIAL PROCEEDINGS 'TO HELP DISCOVER THE TRUTH.' MANY ASK QUESTIONS OF WITNESSES, SUM UP ARGUMENTS, OR OTHERWISE TAKE OVER THE ROLES OF THE ATTORNEYS. SINCE THE TWO FUNDAMENTALS OF THE U.S. COURT SYSTEM ARE ADVERSARINESS AND JURY TRIAL, THIS EXPANSION OF JUDICIAL POWER IS USUALLY UNWARRANTED. THE JUDGE MAY ACT IN MANY WAYS TO ASSIST THE LAWYERS; THE DANGER COMES WHEN THE JUDGE BEGINS SUMMING UP THE ARGUMENTS, PRESENTING A PERSONAL INTERPRETATION OF THE FACTS TO THE JURY. THE JUDGE'S CHARGE SHOULD BE LIMITED TO A STATEMENT OF THE LAW. FURTHER ELABORATION MAY BE PERMITTED IN AN EXTREMELY COMPLEX CASE, BUT SHOULD BE THE EXCEPTION RATHER THAN THE USUAL PROCEDURE. JUDGES FACED WITH INADEQUATE COUNSEL HAVE AT LEAST EIGHT COURSES OF ACTION OPEN TO THEM. IF IT BECOMES CLEAR DURING CLOSING ARGUMENTS THAT THE LAWYER HAS MISSTATED FACTS, THE JUDGE CAN AND SHOULD REPRIMAND THE LAWYER. AT THE CONCLUSION OF ARGUMENTS, THE JUDGE MAY INFORM COUNSEL OF ANY OMISSIONS THAT MAY CONFUSE THE JURY AND RECOMMEND A CLARIFICATION. THE JUDGE MAY ADVISE BOTH PARTIES BEFORE CLOSING ARGUMENTS OF A PARTICULAR FORMAT WHICH COULD REDUCE CONFUSION, OR OF ARGUMENTS WHICH SHOULD BE INCLUDED. ADVICE TO COUNSEL IS GIVEN IMPARTIALLY TO BOTH SIDES AND OUT-OF-HEARING OF THE JURY, AND IT MAY BE FREELY REJECTED. THE JUDGE MAY ASK COUNSEL'S PERMISSION TO SUMMARIZE IN A COMPLEX CASE. THE JUDGE MAY SUGGEST THAT SUMMARY OR COMMENT WOULD BE USEFUL ANY TIME DURING A TRIAL. THE JUDGE MAY POINT TO SPECIFIC ASPECTS OF THE CASE WHEN SUMMARIZING THE LAW, AND ALSO INDICATE THE DIFFERENCE BETWEEN DIRECT AND CIRCUMSTANTIAL EVIDENCE AND PROPER RULES OF EVIDENCE. STATEMENTS FROM THE BENCH, SUCH AS DIRECTING A JURY TO VIEW A CONFESSION WITH CARE OR GIVING DIRECTIONS ON EVALUATING EYEWITNESS TESTIMONY MAY BE PERMISSIBLE, AND ARE NOT AS DANGEROUS AS JUDICIAL SUMMATIONS. JUDGES SHOULD REMEMBER THAT THEY DO LITTLE TO PROMOTE PUBLIC CONFIDENCE IN THE LEGAL SYSTEM WHEN THEY TAKE OVER FOR LAWYERS WHO MERELY COULD BE ASSISTED. (GLR)