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Chapter 27 - The Bench Trial - How to Win Trial Manual - Sixth Edition
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8225
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Originally from: How to Win Trial Manual - Sixth Edition - Hardcover Version
How to Win Trial Manual - Sixth Edition - Digital Version
Preview Page At every one of my full-day programs and two-day, intensive hands-on workshops, lawyers ask: “What about the bench trial? Are the rules the same?” Yes and no. First, I have to tell you that I would never waive my right to a jury. There are some very good and fair trial judges, and, of course, as in any area, there are those who are not so good—the bell curve of ability is the same for judges as it is for physicians, auto mechanics, or teachers. The jury’s great strength is that there is more than one person making the decision. And they hammer out a decision as a deliberative body, each sharing with the others what they know from life. This gives the resulting verdict rebar-strength that is not possible when only one person makes the decision, irrespective how bright that person is. This, of course, is the theory behind having panels of appellate judges—and the higher you go up on the judicial-review hierarchy the more judges are on the panels. So, my advice is never waive a jury. Of course, there are some cases—largely those derived from the “equity” fork rather than the “law” fork in the jurisprudential road—where you cannot get a jury. It also applies to administrative hearings before a single fact-finder, and to arbitration panels. The following is advice for those cases. All of the rules are the same, except for the rule that you should never (or rarely) object to evidence in front of the jury. Also, with the exception of the subpart on proposed findings of facts and conclusions of law, my suggestions are the same for civil and criminal trials. A. Objecting to Evidence in Front of the Jury (civil and criminal cases). Because, by definition, there is no jury in a bench trial or administrative hearing, the rule as phrased does not apply. Also, the rules of evidence may or may not apply in administrative hearings, or, they may apply only in part. The judge or administrative hearing officer will, obviously, learn the objectionable evidence when he or she has to decide whether it should be admitted, so there is no down-side to objecting. The law in every jurisdiction both requires judges hearing a case without a jury to comply with the rules of evidence and also assumes that they do.
Ralph Adam Fine has been a judge on the Wisconsin Court of Appeals since 1988. He served as a trial judge from 1979 to 1988, and presided over more than 350 jury trials. He was the presiding judge in the PBS Frontline production Inside the Jury Room, which was the first time jury deliberations in a criminal trial were filmed and broadcast. Judge Fine has taught trial-advocacy, evidence, and appellate-advocacy at over 150 continuing legal education programs around the country, at in-house trial-advocacy programs to law-firm litigation departments, and as Professorial Lecturer in Law at the George Washington University National Law Center in Washington, D.C. In January of 1995, the University of Virginia School of Law honored Judge Fine with the Honorable William J. Brennan, Jr., Award for his contributions to the teaching of trial advocacy.
Judge Ralph Adam Fine is the author of The How-To-Win Trial Manual - 5th Edition , The How-To-Win Appeal Manual - 2nd Edition as well as the annually supplemented Fine's Wisconsin Evidence, which Judge Jack B. Weinstein, original co-author of Weinstein's Federal Evidence, called "probably the best single-volume state treatise on the subject that I have seen." Judge Fine is also a senior contributing editor and reporter for the four-volume treatise Evidence in America (Lexis); and a contributing editor of the ABA publication Emerging Problems Under The Federal Rules of Evidence (Lexis 3d ed.). He has analyzed legal issues on 60 Minutes, Nightline, and PBS's The NewsHour.
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