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Special Functions of the Trial Judge
In February 1999, the ABA House of Delegates approved these “black letter” standards that have been published with commentary in ABA Standards for Criminal Justice: Special Functions of the Trial Judge, 3d ed., © 2000 American Bar Association. For the text of the publication, click here. To go directly to individual “black letter” standards (without commentary), click on the links below. For information about purchasing the printed volume, please click here
PART I. BASIC DUTIES
PART II. GENERAL RELATIONS WITH COUNSEL AND WITNESSES
PART III. MAINTAINING THE DECORUM OF THE COURTROOM
PART IV. USE OF SANCTIONS
(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.Standard 6-1.2. Community relations
(b) The trial judge should require that every proceeding before him or her be conducted with unhurried and quiet dignity and should aim to establish such physical surroundings as are appropriate to the administration of justice. The trial judge should give each case individual treatment; and the judge's decisions should be based on the particular facts of that case. The trial judge should conduct the proceedings in clear and easily understandable language, using interpreters when necessary.
(c) The trial judge should be sensitive to the functions of the prosecutor, defense counsel, witnesses, and jury, and the interests of the defendant, victim and public; and the judge's conduct toward them should manifest professional respect, courtesy, and fairness.(a) The trial judge may promote efforts to educate the community on the operation of the criminal justice system. However, in endeavoring to educate the community, the judge should avoid activity which would give the appearance of impropriety or bias.Standard 6-1.3. Adherence to standards
(b) The trial judge should not discuss pending or impending cases, and should avoid responding to personal criticism or complaints about particular decisions, other than to correct a factual misrepresentation in the reporting of the ruling.
The trial judge should be familiar with and adhere to the canons and codes applicable to the judiciary, the ethical rules effective in the particular jurisdiction applicable to the legal profession, and standards concerning the proper administration of criminal justice.
The trial judge's appearance, demeanor, and statements should reflect the dignity of the judicial office and enhance public confidence in the administration of justice. The wearing of the judicial robe in the courtroom will contribute to these goals.(a) The trial judge has the obligation to avoid delays, continuances, and extended recesses, except for good cause. In the matter of punctuality, the observance of scheduled court hours, and the use of working time, the trial judge should be an exemplar for all other persons engaged in the criminal case. The judge should require punctuality and optimum use of working time from all such persons.Standard 6-1.6. Duty to maintain impartiality
(b) The trial judge should respect the personal and professional demands on the lives of counsel, the defendant, jurors, witnesses, and victims, and should schedule and utilize court time remaining sensitive to these needs.(a) The trial judge should avoid impropriety and the appearance of impropriety in all activities, and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The judge should not allow family, social, political or other relationships to influence judicial conduct or judgment.Standard 6-1.7 Judge's duty concerning record of judicial proceedings
(b) During the course of official proceedings, the trial judge should avoid contact or familiarity with the defendant, victims, witnesses, counsel, or members of the families of such persons which might give the appearance of bias or partiality.
(c) A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, national origin, disability, age, or sexual orientation.
(d) It is the responsibility of the trial judge to attempt to eliminate, both in chambers and in the courtroom, bias or prejudice due to race, sex, religion, national origin, disability, age, or sexual orientation. The judge should also avoid bias in hiring, and strive to achieve diversity in his or her staff.
(e) A judge should not be influenced by actual or anticipated public criticism in his or her actions, rulings, or decisions.
The trial judge has a duty to see that the reporter makes a true, complete, and accurate record of all proceedings. The judge should at all times respect the professional independence of the reporter, but may challenge the accuracy of the reporter's record of the proceedings. The trial judge should not change the transcript without notice to the prosecution, the defense, and the reporter, with opportunity to be heard. The trial judge should take steps to ensure that the reporter's obligation to furnish transcripts of court proceedings is promptly met.(a) The trial judge should maintain a preference for live public proceedings in the courtroom with all parties physically present.Standard 6-1.9. Obligation to perform and circumstances requiring recusal
(b) All significant proceedings, whether or not public, should be on the record. Relevant decisions in proceedings not on the record should be reflected in the record.
(c) The trial judge should place or permit counsel to place any germane matter on the record which has not been previously recorded.
(d) When electronic procedures for transmission or recording are used, the proceedings transmitted or recorded should reflect the decorum of the courtroom. When the right to counsel applies, such procedures should not result in a situation where only the prosecution or defense counsel is physically present before the judge.(a) The trial judge should recuse himself or herself whenever the judge has any doubt as to his or her ability to preside impartially or whenever his or her impartiality reasonably might be questioned.Standard 6-1.10. Issuance or review of warrants or other ex parte orders
(b) Trial judges have an obligation to perform their judicial function and avoid recusal when not warranted.
Whenever a trial judge is called upon to issue a warrant for arrest or search, to review the issuance of such a warrant or the execution thereof, or to issue or review other ex parte orders, the judge should carefully observe constitutional and statutory requirements and not permit these procedures to become mechanical or perfunctory. Where the trial court has supervisory jurisdiction over other judicial officers who perform these functions, the court should ensure that this standard is observed.(a) The trial judge should seek to ensure that the status of persons held in jail awaiting formal charge, trial, or sentence is monitored. The judge should take appropriate corrective action when required.
(b) The trial judge should respond promptly to specific inquiries from persons held in custody and, if warranted, should make inquiries or take other action.
GENERAL RELATIONS WITH COUNSEL AND WITNESSES
The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with the judge ex parte, except after adequate notice to all other parties or when authorized by law or in accordance with approved practice. The judge should ensure that all such ex parte communications are subsequently noted on the record.
The trial judge should permit full and proper examination and cross-examination of witnesses, but should require the interrogation to be conducted fairly and objectively and with due regard for the dignity and legitimate privacy of the witnesses.
The trial judge should permit reasonable latitude to counsel in the examination and cross-examination of witnesses, but should not permit unreasonable repetition or permit counsel to pursue clearly irrelevant or improper lines of inquiry.
The trial judge should respect the obligation of counsel to present objections to procedures and to admissibility of evidence, to request rulings on motions, to make offers of proof, and to have the record show adverse rulings and reflect conduct of the judge which counsel considers prejudicial. Counsel should be permitted to state succinctly the grounds of his or her objections or requests; but the judge should nevertheless control the length, manner and timing of argument.
The trial judge should respect the obligation of counsel to refrain from speaking on privileged matters, and should avoid putting counsel in a position where counsel's adherence to the obligation, such as by a refusal to answer, may tend to prejudice the client. Unless the privilege is waived or is otherwise inapplicable, the trial judge should not request counsel to comment on evidence or other matters where counsel's knowledge is likely to be gained from privileged communications.(a) The trial judge has the responsibility to treat the jury with dignity. This includes the responsibility both to inform the jury of anticipated scheduling and to assure that the jury has an opportunity to deliberate on a reasonable schedule. The trial judge should also endeavor to assure that the jury has comfortable surroundings.
(b) The trial judge should conduct the trial in such a way as to enhance the jury's ability to understand the proceedings and to perform its fact-finding function.
MAINTAINING THE DECORUM OF THE COURTROOM
The trial judge, preferably before a criminal trial or at its beginning, should prescribe and make known the ground rules relating to conduct which the parties, the prosecutor, the defense counsel, the witnesses, and others will be expected to follow in the courtroom, and which are not set forth in the code of criminal procedure or in the published rules of court.
The trial judge should endeavor to maintain secure court facilities. In order to protect the dignity and decorum of the courtroom, this should be accomplished in the least obtrusive and disruptive manner, with an effort made to minimize any adverse impact.
The trial judge should make known before trial that, when court is in session, no colloquy, argument, or discussion directly between opposing counsel in the presence of the judge or jury will be permitted on matters relating to the case, except that, if a brief conference between counsel might tend to expedite the trial, the judge will grant them leave to confer.(a) The trial judge should be a model of dignity and impartiality. The judge should exercise restraint over his or her conduct and utterances. The judge should remain neutral regarding the proceedings at all times, suppress personal predilections, control his or her temper and emotions, and be patient, respectful, and courteous to defendants, jurors, witnesses, victims, lawyers, and others with whom the judge deals in an official capacity. The judge should not permit any person in the courtroom to embroil him or her in conflict, and should otherwise avoid personal conduct which tends to demean the proceedings or to undermine judicial authority in the courtroom.Standard 6-3.5. Judge's use of powers to maintain order
(b) The trial judge should require similar conduct of staff, court officials and others subject to the judge's direction and control.(a) A trial judge should maintain order and decorum in judicial proceedings. The trial judge has the obligation to use his or her judicial power to prevent distractions from and disruptions of the trial.Standard 6-3.6. The defendant's election to represent himself or herself at trial
(b) When it becomes necessary during the trial for the judge to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, the judge should do so outside the presence of the jury, if possible. Any such comment should be in a firm, dignified, and restrained manner, avoiding repartee, limiting comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.(a) A defendant should be permitted at the defendant's election to proceed in the trial of his or her case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:Standard 6-3.7. Standby counsel for pro se defendant(i) has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when the defendant is so entitled;(b) When a defendant undertakes to represent himself or herself, the court should take whatever measures may be reasonable and necessary to ensure a fair trial.
(ii) is capable of understanding the proceedings; and
(iii) has made an intelligent and voluntary waiver of the right to counsel.(a) When a defendant has been permitted to proceed without the assistance of counsel, the trial judge should consider the appointment of standby counsel to assist the defendant when called upon. Standby counsel should always be appointed in capital cases and in cases when the maximum penalty is life without the possibility of parole. Standby counsel should ordinarily be appointed in trials expected to be long or complicated or in which there are multiple defendants, and in any case in which a severe sentence might be imposed.Standard 6-3.8. The disruptive defendant
(b) The trial judge should clearly notify both the defendant and standby counsel of their respective roles and duties.
(c) When standby counsel is appointed to provide assistance to the pro se accused only when requested, the trial judge should ensure that counsel not actively participate in the conduct of the defense unless requested by the accused or directed to do so by the court. When standby counsel is appointed to actively assist the pro se accused, the trial judge should ensure that the accused is permitted to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.
A defendant may be removed from the courtroom during trial when the defendant's conduct is so disruptive that the trial cannot proceed in an orderly manner. Removal is preferable to gagging or shackling the disruptive defendant. The removed defendant ordinarily should be required to be present in the court building while the trial is in progress. The removed defendant should be afforded an opportunity to hear the proceedings and, at appropriate intervals, be offered on the record an opportunity to return to the courtroom upon assurance of good behavior. The offer to return need not be repeated in open court each time. A removed defendant who does not hear the proceedings should be given the opportunity to learn of the proceedings from defense counsel at reasonable intervals.
If a defendant who is permitted to proceed without the assistance of counsel engages in conduct which is so disruptive, including disobeying or failing to respond to judicial orders or rulings, that the trial cannot proceed in an orderly manner, the court should, after appropriate warnings, revoke the permission and require representation by counsel. If standby counsel has previously been appointed, the counsel should be asked to represent the defendant. When appropriate, the trial should be recessed to allow counsel to make the necessary preparations to go forward with the trial.(a) Any person who engages in conduct which disturbs the orderly process of the trial may be admonished or excluded, and, if such conduct is intentional, may be punished for contempt. Any person whose conduct in a criminal proceeding tends to menace a defendant, an attorney, a victim, a witness, a juror, a court officer, the judge, or a member of the defendant's or victim's family may be removed from the courtroom.Standard 6-3.11. Attorneys from other jurisdictions
(b) When a victim or a member of a victim's or a defendant's family is removed from the courtroom during trial, he or she should ordinarily be allowed to return upon assurance of good behavior.
If an attorney who is not admitted to practice in the jurisdiction of the court petitions for permission to represent a defendant, the trial judge should grant such permission if the attorney is admitted to practice and in good standing in another jurisdiction. The judge may:(a) grant such permission on condition that:(i) the petitioning attorney associate with him or her as cocounsel a local attorney admitted to practice in the jurisdiction;(b) deny such permission if the attorney has been held in contempt of court or otherwise formally disciplined for courtroom misconduct, or if it appears by reliable evidence that the attorney has engaged in courtroom misconduct sufficient to warrant disciplinary action.
(ii) the local attorney will assume full responsibility for the defense if the petitioning attorney becomes unable or unwilling to perform his or her duties; and
(iii) the defendant consents to the foregoing conditions; or
USE OF SANCTIONS
The court has the inherent power to protect the integrity and fair administration of the criminal justice process by imposing sanctions. The trial judge has the power to cite and, if necessary, punish summarily anyone who, in the judge's presence in open court, willfully obstructs the course of criminal proceedings.
If the judge determines to impose sanctions for misconduct affecting the trial, the judge should ordinarily impose the least severe sanction appropriate to correct the abuse and deter repetition and should do so outside the presence of the jury, if possible. In weighing the severity of a possible sanction for disruptive courtroom conduct to be applied during the trial, the judge should consider the risk of further disruption, delay, or prejudice that might result from the character of the sanction or the time of its imposition.
The sanction of contempt should not be imposed by the trial judge unless:(a) it is clear from the identity of the offender and the character of his or her acts that the disruptive conduct was willfully contemptuous; orStandard 6-4.4. Notice of intent to use contempt power; postponement of adjudication
(b) the conduct warranting the sanction was preceded by a clear warning that such conduct was impermissible and that specified sanctions might be imposed for its repetition.(a) The trial judge should, as soon as practicable after he or she is satisfied that courtroom misconduct requires contempt proceedings, inform the alleged offender of the judge's intention to institute such proceedings.Standard 6-4.5. Notice of nature of the conduct and opportunity to be heard
(b) The trial judge should consider deferring adjudication of contempt for courtroom misconduct of a defendant, an attorney, or a witness until after the trial, and should defer such a proceeding unless prompt punishment is imperative.
Before imposing any punishment for criminal contempt, the judge should give the offender notice of the nature of the conduct and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment.
The judge before whom courtroom misconduct occurs may impose appropriate sanctions, including punishment for contempt, but should refer the matter to another judge whenever the presiding judge has any doubt about his or her ability to preside over the matter impartially, or if the presiding judge's objectivity can reasonably be questioned.