Saturday, December 12, 2009

TV and The Courts

By John DiMotto

My friend, Court of Appeals Judge Dan Anderson, did a facebook post about an article on about how the Massachusetts Supreme Court is reviewing a conviction in which a trial judge injected himself in a trial with the jury about how CSI is not reality. While it may not be reality, the issue revolves around the judge telling the jury this fact. The Chief Justice of the MA Supreme Court expressed sentiments that everyone knows this and a judge should not say so.

This issue highlights the "tightrope" that a trial judge must traverse during a jury trial. Judges must be careful about comments they make during a jury trial because jurors look to the judge "for counsel." When a judge speaks, the jurors listen and accept what the judge says as fact. The judge should be above the fray and be independent and not express any opinions about the case or the strength or weakness of the evidence. We do not wear robes just to lend dignity to the proceedings. As my wife, Judge Jean DiMotto, has said, when a judge puts on his/her robe it covers up our personality, our likes and dislikes, our passions and our idiosyncrasies and we make rulings based on the facts and the law - not what we would like to see.

If there is an issue regarding scientific testing, etc, the CSI issue may be one that should be addressed by the attorneys during voir dire.

1 comment:

  1. Posting on the weekend, too?! You're a machine, John.

    I saw this this morning and wrote a lengthy comment, which was lost as I attempted to post it. Good thing, too -- it didn't really add much to your insight.

    All I'll add again is this -- our robe covers most of us, but we don't wear a hood (like an executioner) or mask (like a home plate ump). So we are not faceless arbiters, and we do not put aside our personality entirely when we take the bench. There are aspects of our personalities that jurors expect of us.

    That's why jurors are so pleased to get a personable judge like you. And, in fact, they deserve a personable judge who can truly communicate the sometimes impersonal provisions of the law in a meaningful way to the real people who make up our juries. Unlike umps, the calls we make sometimes need to be made with real heart, not facelessly, like a ball or a strike, and a judge who brings personal charisma to the job is a true asset to the system.

    Keep up the good work, John!