I write today about the much maligned sidebar. That’s when lawyers huddle in open court, backs turned to everyone, and whisper things they think no one else in the room should hear. Sidebars come in all shapes and sizes.
My all time favorite sidebar came moments after informing a judge a witness was going to take the stand to announce his belief that I was romantically involved with the judge. (Just where the witness got that idea is a mystery to me, as the notion was untrue. The witness, I soon learned, had “issues.”)
The judge’s eyes widened.
“The very notion is preposterous,” the judge said in open court. “The court finds the suggestion ridiculous.” The courtroom was atwitter. She was about to say more when I requested a sidebar.
“Judge, may we approach?” I asked.
“Yes,” she hissed.
When the prosecutor and I were safely at the bench, our backs turned to the gallery of spectators, I pled my case.
“Judge, you’re killing me. A simply denial would have been sufficient. But ridiculous?” I smiled at her, trying to get her to smile herself. It was unfair of me, of course, as she was sitting facing a packed courtroom.
She was a little less emphatic in her denials of our amorous connection thereafter.
As soon as court ended, I got on my cellphone.
“About tomorrow’s news coverage,” I told my wife.
Most sidebars are far more serious.
The roles of participants in a courtroom battle are narrowly drawn. Lawyers are advocates. The judge decides matters of law. Jurors decide matters of fact. Sidebars are used to keep jurors from hearing things they shouldn’t consider. A judge decides what these things are as a “matter of law.”
Of course these distinctions are a little too tidy to reflect the gritty work of justice. Lawyers and judges sometimes refer to what they call “mixed questions of law and fact.” I’ve often suspected that this class contains things that are simply too confusing to categorize easily.
Here’s an example of how to draw the distinction between a matter of law and a matter of fact.
Suppose a witness takes the stand in a murder case to say that Louie, the accused, robbed a bank 12 years ago. There’s no doubt Louie knocked off the local Webster’s Bank branch. He even has it tattooed on his chest: “I whacked a Webster’s.” It is a fact.
The law, however, declares that not all facts are relevant. In the trial of Louie for killing his paperboy shortly after reading that the Yankees lost their last game, a trial court will almost certainly keep evidence of Louie’s robbing ways from seeing the light of evidence. As a matter of law, the robbery is inadmissible.
Good lawyers know the easy rules. But what happens if the counsel on the other side the aisle is a dumbbell or if the issue is complex? In that case, a good lawyer moves in limine, a Latin term meaning at the threshold, for a court order directing the other side not to mention the robbery in the presence of the jury.
This is the sort of stuff that gets worked out when the jury can’t hear about it.
Judges worry excessively about what juries think. I sometimes think the robe-wearing class is as concerned with serving as concierges of justice as they are of assuring the parties get a fair trial. A sidebar is a quick way of resolving a legal issue without sending the jury out of the room. Ask a judge sometime to send the jury from the room. Most judges don’t mind if you do it every so often, but the more often you ask, the more likely you are to draw a scowl.
But the problem with sidebars is that they are often conducted “off the record.”
The record is a big deal at trial. That’s because the loser at trial, except when the state loses in a criminal case, can take an appeal. (The state lacks that right because permitting the state to appeal could result in a defendant being twice tried for the same offense, in violation of the Fifth Amendment’s double jeopardy clause.)
On appeal, the judges are supposed to consider only what is in the record. Lawyers call appeals “record driven.” The record is the transcript of all words spoken at trial, together with exhibits either offered, or accepted, into evidence, and all significant paperwork filed with the court.
Words spoken “off the record” simply don’t exist for appellate purposes. So trial lawyers often request a jury be sent from the room when legal issues are argued. That’s the only way to safely make a record.
The term sidebar worked its way into the general vocabulary courtesy of the 1994 O.J. Simpson trial in Los Angeles. It seemed the trial judge, Lance Ito, loved sidebars. He’d sit on the bench like a hen about to lay a prize egg. Ito persuaded me once and for all that cameras in the courtroom bring out the worst in people. I could swear he’d sometimes ask for sidebars just to shut the lawyers up to give him a chance to look Solomonic on national television.
Ito gave sidebars a bad name.
In no other context do adults treat others with such seeming disdain as in a courtroom. We bring jurors in to decide important issues, and then act as though they are children unfit to hear what we adults discuss. In the Bridgeport federal court at least one of the courtrooms is actually equipped with a noise machine. When lawyers and judge huddle at the bench to discuss how many angels can dance on the head of a pin, the judge flicks a switch. A loud hiss fills the room.
“Have I offended you, judge?” I asked a jurist the other day at sidebar.
If he had nails, he would have spat them at me, nailing me to the far end of the courtroom.
“No,” he said.
Unpersuaded, I walked back into the well of the court. The jury was outside the room.
“I don’t appreciate the manner in which I am being treated,” I told the judge.
His eyes bulged.
“The court has done nothing to warrant that comment,” he said.
“The record,” I said, “does not reflect what I see.”
He eased up some afterwards. Or maybe I behaved a little better. I wasn’t about to ask him for a sidebar to check on how I was doing. Sometimes you just roll with the punches.