What Is a Courtroom Sidebar
What is a sidebar in court? A sidebar is a private conversation between the judge, lawyers, and/or the witness, usually while the jury is waiting or while the judge is deciding something. A sidebar allows those in the court to have discussions away from the jury so they don’t hear. These conversations can cover a multitude of topics, including the evidence, objections, and/or jury instructions. Sometimes these conversations are necessary because the judge does not want the jury to hear what is being said, or there is no need for the jury to hear the discussion. Sidebars are also used to protect the rights of litigants and witnesses. The judge may ask questions of their own to get clarification on points made by the lawyers or the witness during testimony.
Sidebar conversations can be direct, informal addresses to the judge or, they may be off the record. A judge and lawyers may simply turn their backs on the jury and quickly discuss something for just a few moments. Or, the parties may request a sidebar by far more formally "a sidebar is requested and granted, we’ll go up to the bench" to more formally tell the court reporter to remove everything but this private discussion . The key to a sidebar is that the jury doesn’t hear the discussion.
A side conversation is distinctly different from a sidebar. A side conversation occurs between all present, including the jury. As the name suggest, side conversation is when some sort of regular conversation is happening with everyone in the courtroom and not a hearing. Most often it is some incidental conversations that the jury can hear, but it is not something the judge needs to address. An example would be when an attorney speaks to their client. This is distinct from any client testimony. Because the conversation is heard, the witness does not hear it, and the parties do not hear it. The result is the jury hears something they were not supposed to, and something that does not get corrected. Side conversations can be productive, and an experienced attorney will ensure they only happen in the presence of the jury when it makes sense and not every court room has an issue with side conversations, but all lawyers regularly monitor for them.
Sidebar Usage by Judges
During a trial, attorneys may make arguments to the judge that jurors cannot hear. The process of asking and answering these questions is called a "sidebar." When this happens, the judge calls the attorneys to the side of the courtroom so that the conversation cannot be overheard by the jury.
Sidebars occur as a result of attorneys’ objections to evidence that could potentially damage their case. There are specific circumstances that call for a sidebar. Sometimes a lawyer will try to introduce evidence that the judge has already ruled inadmissible. This is sometimes an honest mistake but may also be an example of a lawyer’s attempt to play fast and loose with the rules. The judge may call a sidebar when he or she spots this kind of behavior, as it can be highly prejudicial to the case.
A lawyer also may request a sidebar to object to a series of questions if they have not yet been answered. Attorneys have a set amount of time to ask their questions and sometimes they know a line of questioning will take up an inordinate amount of time. A sidebar can permit the judge to intervene and determine whether the line of questions is relevant and whether the attorney can proceed with that questioning.
Sometimes sidebars occur spontaneously in response to inappropriate comments, whether to the jury or to witnesses. For example, a witness might make an objectionable comment that needs to be addressed immediately. A sidebar is called instead of allowing the testimony to continue in front of the jury.
After a side conversation, both attorneys return to their seats and the judge instructs the jury to disregard the comments made during the sidebar. If necessary, the judge may even chastise the offending attorney for the negative impact the comments could have had on the jury’s deliberations.
Judges generally do not like calling for a sidebar, as it means the trial is being delayed. But they recognize that successful and fair completion of a trial is their primary goal. A judge may not want their trial to be delayed because one or both of their attorneys is giving evidence or making comments that could lead to a mistrial.
Attorneys sometimes push the limits in their behavior and may even continue to do so after receiving a warning that their comments could harm the trial. In these cases, the judge may not be able to issue harsh enough warnings to deter the attorney’s objectionable behavior. In these circumstances, the judge may call for a sidebar to get the situation under control.
In some cases, the judge pulls the attorneys aside simply to get them out of the earshot of the jury. This could happen, for example, if the judge sees the attorney doing something inappropriate without purpose, such as shuffling papers loudly or pensively tapping a pen on a table. In this case, the object of the sidebar is to preserve the integrity of the trial by discouraging attorneys’ unnecessary or distracting behavior.
All judges value their ability to run their courtrooms smoothly, and their ability to keep their attorneys in the courtroom. They do not want to have to constantly call sidebars and affect the entire flow of the proceedings. Nonetheless, they do so when absolutely necessary, in order to protect the integrity of the trial.
Legal Effect of a Courtroom Sidebar
With so many procedural rules, it is not surprising that there are few who really understand what purports to go on at a sidebar. Simply stated, a judge should "stay a proceeding when the judge believes it is necessary or convenient to do so." (Cal. Evid. Code § 612; Cal. Rules of Court, Prop. R. 3.7 and 3.8.) While much of what happens at a sidebar is at the discretion of the judge and of the parties, there are parameters within which they are expected to remain.
At a sidebar, there is no record. Because of the lack of an official record, courts have declined to rely on testimony of judges with respect to what happened at a sidebar. (See e.g., People v. Turnage (1954) 224 P.2d 726 (CA6 Dist.).) As a result, while nothing that is actually said in a sidebar can be used as evidence, its impact can be far more wounding and lethal to a case than having evidence presented. When a judge meets with counsel and/or a witness at a sidebar, everything that is said can be considered and given deference in any appellate issues.
While the magic of a sidebar may spark the interest of many spectators, the reality is that it often has a greater effect on the ruling than even the evidence itself. Examples of the effectiveness of a legal sidebar are as follows: If a request is made "off the record" in a sidebar, and the ruling is favorable, some clients may feel that enough of a record has been made. Notwithstanding, an oral ruling made at a sidebar, even a ruling stated on a transcript, is considered insufficient by an appellate court. (See e.g. Darling v County of Kern (1970) 9 C.A. 3d 214; see also, People v Scott (1971) 16 C. App.3d 919.)
In ruling on a motion, the trial judge is expected to give notice of his or her intended ruling in open court. (A ruling not initially announced in open court is not appealable.) Thus, once a decision or order is made at a sidebar, it is expected that the decision will be memorialized by being made in open court. An action that violates that expectation can be reversed by an appellate court (even in a criminal trial). (See generally, People v. Alvarez (1996) 14 A.L.R. 5th cautioning below as a result of comments made during a sidebar.)
Because of all of the complexity of what happens at a sidebar, counsel and its clients should keep in mind that a judge is not required to consider the matters discussed at a sidebar. (See e.g. People v. McPadden (2002) 104 Cal. App. 4th 393; Ward v. Taggart (1959) 51 Cal.2d 250.) Recognizing that fact, both counsel and its clients should weigh the pros and cons before asking a judge to "sit down at the corner of the bench." And, when doing so, counsel needs to ask itself whether it might be possible to simply frame its proposed testimony in a way that minimizes the need to speak at a sidebar in the first instance.
How to Execute a Courtroom Sidebar
The mechanics of conducting a sidebar are somewhat flexible, but most often include the judge and both attorneys in the presence of the court reporter. The attorney seeking to address the court will request "a moment at sidebar." Both attorneys move to the sidebar, where they can lean in and have a discussion relatively privately but without leaving the presence of the jury. In some courts, the judge will first ask the jurors to leave the courtroom if the discussion is possibly private. Sometimes the judge will prohibit all discussion at sidebar and instead invite the attorneys to submit something to the judge in writing. Obviously, in situations where the court is addressing only one of the attorneys (for example, when a judge wants to discuss matters outside the presence of the jury that are specifically directed to that attorney), the judge will not invite the other attorney to the sidebar. The judge may also limit participation in the sidebar to counsel and the court’s staff, specifically excluding jurors, witnesses, and spectators. In all cases, the proceedings are without the jury, and should be confidential in all respects.
Controversy and Issues Surrounding Sidebars
The practice of calling for a sidebar session is fairly common in the courtroom, but rarely do you see attorneys or judges address its flaws or abuses. Some of the more common arguments against sidebars are as follows: There are a number of critics who believe that arguments and evidence presented at sidebar benefit one party over another, that the public is deprived of hearing portions of trials, and that sidebars can be repetitive, redundant and a waste of time. Among the proposed solutions to these challenges, are of course greater communication between the bench and the bar (I know, sounds fun), a few practical solutions that have been suggested by critics include: 1. The Judge making a ruling based solely on what has occurred at sidebar. 2. Once a sidebar conference is over, the attorneys should be required to reintroduce their issues onto the record, employing a technique similar to what’s used during pre‐trials, as argued for by Thomas E. Simmons and Gerald L. Rowens when they said, "Although this could lengthen the conference periods, it would appear to be fair to all parties concerned." 3. If nothing could be resolved at the sidebar, it is argued that the lawyers should be required to reintroduce their argument onto the record to make sure everyone, including the public has an opportunity to hear the arguments in question. 4. No communication at the sidebar conference until all counsel has arrived to prevent the possibility of any "side‐bar conversations" taking place. 5. All conferences should be recorded on the record, so there’s an accurate record for review. 6 . Howard Chapman proposed: "He (the Judge) should give opposing counsel an opportunity to respond at the approach (side bar) before reaching his decision." 7. Nothing, as a moratorium on the use of sidebars for all counsel made by Andrew Bertetti, in, Eliminating Sidebars: The Bench Should Extend Judicial Fairness to the Courtroom at Large," in an effort to make a better system overall, he said that "curtailing the use of sidebars would be a step towards limiting judicial discretions." He used as an example the need for relieving scheduling issues in courts of limited size and resources; courtrooms and chambers that are directly adjacent which can ultimately create logistical problems; time restraints, that can be related to scheduling of jurors or witness availability; and the potential for impartiality issues, including the possibility of jurors or judges potentially altering their perceptions of the trial or the credibility of witnesses or even the attorneys themselves due to the need to move to and from evidence in anticipation of the outcome of a sidebar discussion. "Judges should only resort to sidebars when all other means of communication between the judge, members of the bench, and all counsel, witnesses, and participants have failed." Using these concepts to bolster his claims, he said that the long term goal of the bench, although shown through the articles and arguments put forth here today, should be to pull "back the curtain" on lots of issues that are being decided without an opportunity for the public to be heard, for fear of public reaction or scrutiny to decisions that are simply not warranted.
Court Cases Involving Sidebar Proceedings
While sidebars are often brief and relegated to the backstory of a case, there are instances where sidebar discussions were crucial to the outcome in significant matters. In U.S. v. Moore, 375 F.2d 57 (7th Cir. 1967), the court reversed a conviction for theft of government property, finding the prosecutor did not disclose to the defense a tape of the conversation between an FBI agent and the government’s main witness, and that the trial court erred in refusing to allow the defense an opportunity to listen to a tape that was offered at sidebar. In State v. Hill, 694 P. 2d 152 (Utah 1984), the court reversed a conviction of aggravated murder, saying refusing to grant a mistrial after the trial court judge’s inadvertent statement at sidebar to the jury that the defendant had no record of criminal convictions "tainted the entire proceeding with reversible error." This ruling was based on the Supreme Court decision in Tumey v. Ohio 273 U.S. 510 (1927) which held that where an issue before a judge is the legitimacy of the judge’s holding the office from which he must decide a case, fundamental fairness requires that the judge be disqualified from presiding over that case. In State v. Ware, 721 A. 2d 886 (Conn 1998), the court ordered a new trial after a trial judge stated in open court "You know I got a note from the forelady that you folks were going to acquit the defendant on all counts. So I don’t know …." and continued monologuing to the jury about the defendant’s presumption of innocence and the prosecution’s burden of proof. Five minutes after the note was received, the judge instructed the jurors, without the defendant present, to resume deliberations, telling them they could discuss the evidence and the responses to the jury notes in her chambers or the courtroom. No transcript of what was said to the jury was ever prepared. The court agreed that this was prejudicial misconduct that warranted a new trial. In State v. Wright, 740 P.2d 22 (Utah 1987), the Supreme Court vacated the defendant’s DUI conviction, finding the trial judge "improperly intimated at sidebar that [the defendant] had not been truthful about his drinking," thereby directing a verdict by instructing a mistrial for lack of evidence. The judge refused "a request that the jury be instructed that the sidebar discussion was out of the hearing of the jury and was not evidence." On a collateral issue in State v. Azbill, 640 P.2d 421 (Utah 1982), the court noted that the prosecutor’s "simultaneous discussion with the jury and his two chief witnesses, coupled with his repeated statement that it had been ‘so ruled’ and ‘a ruling’ … .," was not reversible error, mainly because there was no objection from the defense until after the issue was raised on appeal.
“Best Practices” for Attorneys at a Sidebar
When you don’t secure a ruling you need from the bench you are faced with three primary choices. One is to accept the ruling; one is to try to do an end run around the ruling, which I’ll talk about in the next section of the blog; and the last is to try to change the ruling. You don’t have any choices if you just accept the ruling. You may want to try to change the ruling so your case isn’t ruined before you get to trial, and that’s where the sidebar comes in.
Now, one way to think of a sidebar is that it’s a way of raising an issue that is an exception to the ruling, which gives the judge a chance to reconsider the ruling, or at least to clarify it. If the ruling is such that you can’t do an end run around it, you might have to take a shot at asking the judge to reconsider the ruling. Let’s assume for this hypothetical that you’re going to do a sidebar because you want the judge to review his or her ruling.
I would always advise counsel that if they believe the judge could be persuaded to change his or her ruling, they should give it a shot. Now once you get in the sidebar, unless you have a limited amount of time, which you should know is going to be the case if the judge tells you "make it quick", then you should know that if you have more than the normal two sec’s at a sidebar to get in there and make your points.
Being well prepared means you know what you want to say, how long it’s going to take, and whether it’s necessary to move on or if you’re on the right track . It’s almost always good to do your "moral advocacy", but depending on the mood of the judge, the timing, and whether or not it is something that is going to be done in many other settings, you might not want to move for a new trial. In a civil case, there might be some things that you hold back on hoping that the judge expands the ruling.
If you believe you can persuade a judge after the ruling has been made to change it under the exceptions to the "law of the case" doctrine, then you should make those arguments. I will tell you though, judges want to just keep moving.
I’ve had judges tell me, when I tried to do a sidebar after they made a ruling that I thought was incorrect, that I wasn’t even allowed to do a sidebar anymore. Now, one of the things I will tell you is that I believe that’s incorrect.
I knew that a motion for reconsideration has to be in writing, and that the rules were pretty clear about something being on the record. If I do a sidebar and the judge says no, then at least I know the judge doesn’t want to hear from me anymore. And then I have to decide if I want to proceed or not. But I’ve never had a judge say you’re out of order if you try to get me to change a ruling.
Many times, the judge simply doesn’t want to change their ruling. And then you have to say to yourself, okay, then I have to go to the parties, shoot straight with them about the rulings, and then decide if you can do an end run around the rulings or if you have to go forward on appeal or some other post-judgment remedy.