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16.14 Conduct Of Judge

     16.14.1 Bench Conference

    16.14.1.1 Bench Conference: Sample Instruction
    16.14.1.2 Bench Conference: No Inference As To Judge's Opinion Of The Case
    16.14.1.3 Bench Conference: Jury Misconduct To Consider Evidence Overheard During Side Bar Conference

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RATIONALE: The jury should be told about bench conferences in advance so that the jurors do not speculate, draw improper inferences, grow inpatient, or harbor ill feelings about the process.

POINTS AND AUTHORITIES: Because bench conferences are legal proceedings outside of the hearing of the jury, there may be a tendency on the part of the jury to speculate about what is being said and/or to draw inferences from the bench conference. For example, if a witness is excused after a bench conference, the jury might infer that the opposing party had successfully objected to the witness when, in fact, the party calling the witness may have voluntarily withdrawn the witness.

    Additionally, the jury may resent the fact that proceedings are being held out of their hearing or grow inpatient from the delay and interruption that bench conferences cause.

    Accordingly, an instruction explaining the bench conference and admonishing the jury not to speculate or draw inferences therefrom may be appropriate. (See e.g., 75 Am Jur 2d Trial § 184; see also Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 23, p. 5 (1988); 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instruction] (2001); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.07 [Bench Conference And Recesses] (2000); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL Inst. 2.2 [Bench Conferences And Recesses] (2000); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst. 1.1 [Preliminary Instructions Before Opening Statements] (Short Form); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Trial Inst.1.2 [Preliminary Instructions Before Opening Statements] (Long Form) (1997) ¶ 9.)

    See NCJIC 2.5.10 [Record Of Bench Conference].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.5].

RESEARCH NOTES:

Annotation, Failure Or Refusal Of State Judge To Have Record Made Of Bench Conference With Counsel In Criminal Proceeding, 31 ALR5th 704.

See also Manual On Recurring Problems In Criminal Trials [5a. Bench Conferences: General Principles].

    The attorneys have approached the bench and conferred with me privately during the trial. Do not concern yourselves with such conferences, or speculate upon what was said and do not draw any inference whatsoever from the fact that such conferences are held.

    Finally, let me clarify something you may wonder about later. During the course of the trial I may have to interrupt the proceedings to confer with the attorneys about the rules of law which should apply here. Sometimes we will talk here, at the bench. But some of these conferences may take time. So, as a convenience to you, I will excuse you from the courtroom. I will try to avoid such interruptions as much as possible, but please be patient even if the trial seems to be moving slowly because conferences often save time for all of us.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 23, p. 5 (1988).]

    From time to time during the trial, the lawyers may approach me here at the bench and hold a whispered discussion. This is called a "bench conference." We will be discussing legal matters. Please do not feel offended by our whispering and do not speculate about the subject matter of our discussion.

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RATIONALE: To prevent improper speculation by the jury in response to a bench conference, the jury should be instructed that the granting or denial of a bench conference is no indication of the judge’s opinion.

POINTS AND AUTHORITIES: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 2.2, ¶ 2 [Bench Conferences And Recesses] (2000 Rev.).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

See also Manual On Recurring Problems In Criminal Trials [5a. Bench Conferences: General Principles].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 3 - CHAPTER 16