2013-09-27 / Columnists

Sullivan’s Court

Courtroom Rules and Protocol
By Keith Sullivan, Esq.

Q. I was watching an episode of Law & Order and was confused during a courtroom scene. First, there were objections to “hearsay”; second, the witness refused to be sworn in but testified anyway and lastly, the judge said she would take “judicial notice” of facts a lawyer was trying to prove. What does all of this mean? - Jane R.

A. You are letting the technical aspects of the script get in the way of a riveting TV drama! However, I am glad the routine and often mundane aspects of the law are not slipping by you unnoticed or putting you to sleep. Recently I told a judge that my adversary would not let the law or the facts interfere with his interesting novel-like version of what we were doing in court. I wish he was as in-tuned to the legal procedure and process as you are.

Let’s begin with hearsay. It is a statement that is said outside of court and is offered as proof in court for the truth of statement’s content. Unless the proposed evidence satisfies a hearsay exception, it will ordinarily not be admitted into evidence during the trial. The idea is that if a witness simply repeats what they heard someone else say, it would be prejudicial to allow the out-of-court statement into evidence because the one who said it is not in court to be cross-examined and thus their perception, memory, narration, view, interest in the case, etc., cannot be challenged. There are exceptions to hearsay and keep in mind that if the lawyer is not trying to prove the truth of the statement’s content it is by definition not hearsay.

For example, in the now famous ‘McDonald’s Spilled Coffee’ case, the restaurant received countless complaints that their coffee was too hot. Those out of court statements (which sound, look and feel like hearsay) were admitted into evidence during the trial, not to prove the truth of the statements… that the coffee was too hot; however, they were admitted to prove that the restaurant was on notice that their coffee was too hot. The lawyer then argued that despite such notice, they took no measures to cure the problem.

Hearsay is a topic many of my law students dread because the exceptions are complex and it is always a fine line between which out of court statement is used to prove its truth or to prove some other plausible basis. It can be a confusing topic with a myriad of exceptions and exceptions to the exceptions. Mastering the rules of evidence for a trial lawyer is akin to a contractor being able to utilize any number of tools, devices and equipment to accomplish the client’s goals.

When you heard the judge say she took “Judicial Notice” that simply meant that the lawyers need not waste time proving something that the judge will automatically upon request deem to be true and accurate. Judges are vested with the power to do so in limited circumstances. The concept is based on the principle that some matters of fact are so generally established in the world that taking evidence to prove the well-known and irrefutable fact would be a waste of time. For example, a judge can take judicial notice that human gestation is nine months; the population statistics for an area; the time of a particular sunset; the number of days in a month; that a certain date falls on a particular day of the week. So long as the judge can confirm the fact in some document or repository of information that is available to the litigants and is deemed irrefutable, the court can take judicial notice.

You did not specify, but I suspect the witness you observed testify was a minor. Subject to limited exceptions reserved for children or people suffering from mental defect, every witness who testifies must swear to the truth of their testimony. The purpose is to deter false testimony and to awaken the moral duty of the witness to their obligation of honesty. The ‘swearing’ is done in the form of taking an oath or affirming. If people have religious or moral objections to taking an oath, they can affirm which is a legal equivalency. Courts prohibit lawyers from commenting on a witnesses’ preference for affirming over taking of an oath.

So next time you are watching your favorite legal drama, take comfort in knowing that you probably pay closer attention to the fine points and legal nuances than many practicing lawyers. I wish all in the profession were as astute and sharp to courtroom protocol and procedure as you are!

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