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Bgood4me

Illegal procedure

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1 hour ago, Bgood4me said:

Is it legal for a judge and prosecutor to question the defenses witnesses without the jury present and then decide if that witness can testify in court in front of the jury?

 

It certainly can be legal. If the prosecution has an objection about a witness the defense wants to call, the judge may need to hear from the witness to determine if the witness is eligible to testify. That has to be done outside the jury because if the testimony of the witness would not be admissible then the jury is not supposed to hear it.

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2 hours ago, Bgood4me said:

Why aren't the prosecutors witnesses don't have to go through this procedure?

 

Prosecutors have to do the same thing if the defense raises an appropriate objection to a prosecution witness.

 

2 hours ago, Bgood4me said:

Why aren't the prosecutors witnesses don't have to go through this procedure? Also is it normal or legal for the defense to have to give their closing remarks to the judge and prosecution before hand?

 

I'm not sure exactly what happened here. The closing arguments are made after each side has rested its case. It would not be normal for the closing arguments to be made first to the judge outside of the jury first and then only after the judge has heard it would the jury hear it.

 

One key question though: was the defendant acting pro se (i.e. without a lawyer)? If the defendant is pro se and there have been issues of the defendant not knowing what is proper, the judge may well want to see the argument before the defendant makes it to the jury to ensure that the defendant does not say anything improper that would taint the case and might result in a mistrial.

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No he is not defending himself he has a lawyer. The defendant was on the stand trying to testify over objection after objection which the judge always sustained and then went to side bar for 20 minutes. She then told the defendant he was through testifying and had him removed. One of the jurors wrote down a question and sent it to the judge, she read it, threw it on the desk and walked out of the courtroom.

Here is a link to the case https://itmattershowyoustand.com/2017/08/judge-cuts-defendants-testimony-short-in-bunkerville-retrial/.  

This judge is doing things I have never seen a judge do.

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The problem is that the judge had entered orders prior to trial that regulated what the defendant could say and apparently the defendant repeatedly stepped over the line by referring to things he was not supposed to talk about. The rules of evidence restrict what is admissible and what is not, and in a trial with issues like this there is a greater potential for the witness to stray and say things that are not admissible. His attorney is supposed to ensure that he knows the limits of what he can say and should be asking questions in a way that is not likely to violate the court order or result in something inadmissible.

 

That sort of problem is not unique to the defense, either. I was a juror in a criminal case a few years back where a young police officer was testifying and he let slip something he was not supposed to say as it violated the rules of evidence and was prejudicial to the defendant. I recognized the problem instantly and my reaction evidently clued in his defense attorney to the problem because he gave me a puzzled look for moment and then I saw it click for him. He asked for a side bar shortly after and after some discussion with the judge the court declared a mistrial and dismissed the charges. It turned out to be an easy win for the defense because of that mistake. The prosecutor in that case was also pretty inexperienced and unfortunately had asked the question in a way that prompted her witness to give that answer. She should have been more careful in her questioning and prep of her witness.

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But how can a judge restrict the defendants right to his defense. This judge declared this defendants whole defense inadmissible therefore leaving the defendant with no means to defend himself. How can this be fair? Or even legal?

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2 hours ago, Bgood4me said:

But how can a judge restrict the defendants right to his defense. This judge declared this defendants whole defense inadmissible therefore leaving the defendant with no means to defend himself. How can this be fair? Or even legal?

 

According to the article you linked, the judge did not declare his “whole defense” inadmissible. In any event, to the extent that what the defendant wants to use for his defense is not admissible the court must exclude that from the trial. Evidence that under the rules is not admissible cannot be used. There are some defendants who, for example, wish to use their trials to push their political agenda and seek to mention things at the trial to do that which would violate the rules of evidence. The judge would in that situation need to prevent the defendant from that course of conduct.

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3 hours ago, Bgood4me said:

Since this was a re-trial the judge knew what the defense was going to be so she just made everything he would be using for his defense inadmissible. Doesn't seem quite fair does it?

 

The defendant cannot violate the rules of evidence or procedure to make his case. He does not get to do whatever he likes. There are rules for how trials are conducted. If the defendant or prosecutor show indications that they will violate those rules it is up to the judge to enforce those rules. There is nothing unfair about that. You can argue the rules ought to be changed, but before you do, you ought to understand the current rules and why they are the way they are. A lot of people think things seem unfair at first but then when the rules and the reasons for them are explained they often change their mind on what is fair. These rules have been developed over many decades in an effort to make trials as fair as we can make them.

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So your saying that before a trial begins a judge and set in place any rules they want? A judge can say you can't mention the constitution in their court room? The very document that made this country great can be barred from a court room.

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The rules imposes by the judge are contained in the state rules of evidence, state rules of procedure, and the local rules of court. If the constitution is not relevant to the case, the court can exclude references to it, depending upon what he wanted to say and the point he wanted to make.

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5 hours ago, Bgood4me said:

So your saying that before a trial begins a judge and set in place any rules they want? A judge can say you can't mention the constitution in their court room? The very document that made this country great can be barred from a court room.

 

I'm saying that a judge can make sure that the applicable rules of evidence and procedure are followed. A person testifying as a witness is only to testify to things of which he has seen and heard. Witnesses are not allowed to argue the law or bring up legal issues in their testimony. Mentioning the Constitution is not testifying to things that he heard and saw. It is trying to argue the law and witnesses cannot do that. The judge instructs the jury on the law that applies o the case. If the Constitution is relevant to any legal issue in the case, the judge will instruct the jury on what the constitution says. The reason for this is that the jury only determines the facts of the case and then applies those facts to the law as given them by the judge to determine their verdict. It is not for the jury to decide what the law is. That is the job of the court.

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On 8/9/2017 at 7:51 PM, Bgood4me said:

Is it legal for a judge and prosecutor to question the defenses witnesses without the jury present and then decide if that witness can testify in court in front of the jury?

 

Possibly.  Depends on the relevant facts, none of which you provided.  It also depends on the jurisdiction where this is occurring, which you didn't identify.

 

 

On 8/9/2017 at 11:57 PM, Bgood4me said:

Why aren't the prosecutors witnesses don't have to go through this procedure?

 

How could we possibly know?  We know nothing about the case you're talking about.

 

 

On 8/9/2017 at 11:57 PM, Bgood4me said:

Also is it normal or legal for the defense to have to give their closing remarks to the judge and prosecution before hand?

 

Depends on the jurisdiction where the trial is taking place.  That being said, a proper closing argument cannot possibly be formulated before the trial has even occurred.

 

 

On 8/11/2017 at 11:57 AM, Bgood4me said:

how can a judge restrict the defendants right to his defense. This judge declared this defendants whole defense inadmissible therefore leaving the defendant with no means to defend himself. How can this be fair? Or even legal?

 

How can it happen?  By the judge issuing a ruling.  Whether it's fair or legal depends on the relevant facts and the applicable law.  By way of an obviously absurd example, let's say that the defendant is on trial for committing battery on the victim.  The defendant wants to defend on the ground that the battery was justified because the defendant is a fan of a baseball team that is the rival of the baseball team that the defendant likes.  Since that isn't a defense that is recognized by law, the judge would not permit the defendant to call witnesses to testify about the extent of the victim's fandom for the rival team.

 

 

On 8/11/2017 at 10:09 PM, Bgood4me said:

So your saying that before a trial begins a judge and set in place any rules they want?

 

No one wrote that or anything from which that could be reasonably inferred.

 

 

On 8/11/2017 at 10:09 PM, Bgood4me said:

A judge can say you can't mention the constitution in their court room?

 

A judge could, in theory, say that, but I doubt any would.  Of course, again, it depends on the relevant facts and the applicable law.  There certainly are crimes for which the federal and any state's constitutions are completely irrelevant.

 

 

On 8/11/2017 at 10:09 PM, Bgood4me said:

The very document that made this country great can be barred from a court room.

 

The notion that any "document . . . made this country great" is absurd.  However, your statement begs the question what the document in question has to do with the case.

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