Picture this: You’re a member of a jury in a civil case. The plaintiff is on the witness stand
answering questions. During cross examination, the attorney for the defendant asks a question
implying that the plaintiff has a prior criminal conviction. Immediately, plaintiff’s lawyer rises and says in a loud voice,
“Objection! May we see the court at sidebar.”
The judge, “Of course, of course, come up here right away.”
The judge says nothing to you, the jury.
You see the attorneys move to the front of the courtroom and you watch as counsel—
huddled together and out of your hearing—argue with each other vociferously while the judge asks
them questions. As a juror, what is your reaction? You may think, or may say something like this during
the next recess or during deliberations:
“Why were the lawyers allowed to address the judge on this issue in private, without
allowing us to hear the discussion?”
“What did they have to hide to prevent us from listening to this dispute about the question
to this important witness?” Or . . .
Picture this: You are a reporter for a newspaper, and you are sitting in the courtroom during
a high-profile public corruption criminal case and a similar scenario takes place. The prosecution’s
witness, on the stand, obviously knows a lot about the defendant. A question is asked that implies
that there is something in the witness’s background that may damage the witness’s credibility. As
above, the defense lawyer cries out, “Objection! May we see you at sidebar.” The court quickly agrees, and the lawyers go to sidebar and have what is obviously a heated argument.
How do you report this to your readers? Why didn’t the judge have this argument in open
court? Do you mention in your story that if the judge did not want the jury to hear the argument,
the judge could have declared a recess and allowed the lawyers to make the argument in open
court, and you would have been able to report on it?
Do sidebars intrude upon the public’s right to access judicial proceedings? Whatever
efficiencies prompt a judge to interrupt a trial for a sidebar conference, the judge should consider
what effect a sidebar may have on the jury, and the public. Exclusion of public access from what
may be an important argument by counsel, or important decision by the judge, may infringe on the
fundamental principle that courts are open to the public. Should there be a rule against sidebars? Should individual judges determine not to allow them at all? There may be better alternatives than having arguments at sidebar, as follows:
1. Require counsel to bring to the court’s attention by a pretrial motion, such as a motion in
limine, evidentiary issues that will likely arise during the trial.
2. Require counsel to alert the judge before jury selection, of evidentiary issues that will likely
require the court to make a ruling during the trial.
3. Question counsel pre-trial as to any potentially prejudicial facts about an upcoming
witness.
4. Repeat this question before the jury comes into the courtroom every morning, or during a
recess.
5. If an issue comes up during the trial, instruct the lawyers: “We will discuss the objection
at the next recess.”
6. Discuss the issue with the lawyers after the jury leaves for the day, understanding that this
may mean the witness has to return the next day.
7. Forbid lawyers from requesting sidebars during the trial while the jury is present.
8. Assuming an unforeseeable issue must be raised out of the hearing of the jury during the
trial, excuse the jury from the courtroom and make some explanation to the jury as to why
they are being excused.
All of these alternatives are preferable to the present practice, in many courts— sidebar is
held whenever an attorney requests one. It is not difficult to imagine a defendant in a criminal case framing a post-conviction appeal, or a habeas claim of incompetent counsel, on the ground that defendant’s attorney agreed to (or failed to object to) a sidebar. The defendant may argue that the jury should have heard the discussion, and the failure of the judge to require the discussion to take place in open court was
prejudicial to the defendant and deprived him of a fair trial.
Or, the defendant may argue that the lack of a record as to what was said during the sidebar—due to, for example, an indiscernible recording of the sidebar, or a lack of recording—prevents appellate review and was prejudicial.
I have practice rules which include a prohibition of sidebars, as follows:
Sidebar conferences. Sidebar conferences are exceptionally disruptive to the normal flow
of a trial and often raise questions in the jury’s mind as to why counsel need to talk to the
Judge out of their hearing. Judge Baylson does not allow sidebar conferences, unless he
believes it is essential at that time. Experience has shown that 99% of the occasions on
which counsel ask for sidebar conferences can be resolved by an objection in open Court,
or could have been raised either by a pretrial motion in limine or prior to the start of Court
that day or at a recess.
If the judge decides to allow a sidebar, the jury should always be advised about why the
argument is taking place outside of their presence. Should the rules committees of a state Supreme Court, or the Advisory Committee on Civil Rules of the United States Judicial Conference consider adding a rule on the topic of sidebars? I suggest the following as a rule that might work to limit the disruptive practice of sidebars:
Sidebar conferences during a trial are discouraged. If necessary, a sidebar must be
recorded, and limited to issues which could not have been raised pretrial or prior to the
witness taking the stand. The court should advise the jury why the sidebar is taking place. 1
There are very few decisions that discuss sidebars, but here are a few:
Federal Court Decisions
• Hogan v. West, 448 F. Supp. 2d 496 (W.D.N.Y. 2006): A habeas proceeding, discussing
defendant’s waiver of right to be present at sidebar, to include sidebars during trial, and
noting the state trial court had expressed a general disapproval of sidebars.
• United States v. Danilovich, No. 12-171, 2015 WL 8526405 (S.D.N.Y. Dec. 2, 2015),
aff’d, 731 Fed. App’x 45 (2d Cir. 2018): A criminal case in which the judge allowed
numerous sidebars, including during cross-examination of an important witness, which
purportedly “unnerved” counsel, and resulted in the jury making facial “expression[s],”
and “interrupted the flow” of counsel’s examinations. Relief was denied because of, inter
alia, the fact that jurors could not “hear” the sidebars (not addressing that they could see
them) and that sidebars were consistent with court policy “to minimize any potential
prejudice that either party may face as a result of the introduction of inadmissible evidence,
an objection, or a ruling against them.” The court also suggested that the sidebars could
have been avoided if defendant’s counsel was better prepared.
• Scott v. Walker, No. 01-7717, 2003 WL 23100888 (E.D.N.Y. Dec. 30, 2003): A habeas
proceeding discussing defendant’s withdrawal of a waiver of right to be present at sidebar
and noting trial court’s opinion that sidebars “look[] like a circus.”
• Dittrich v. Sec’y Fla. Dep’t of Corr., No. 05-1289, 2007 WL 4287679 (M.D. Fla. Dec. 6,
2007): A habeas proceeding discussing defendant’s argument that the lack of transcripts
for several sidebars violated due process, including whether the lack of a record hindered
appellate or post-conviction review and/or resulted in prejudice.
• United States v. Holmes, 794 F.2d 345 (8th Cir. 1986): Disagreeing with defendant’s
argument that trial judge used sidebar to “impermissibly counsel[] the government on how
much proof was needed to prevail in its prosecution” and holding that the Court’s inquiries
did not amount to the requisite prejudice justifying reversal because, inter alia, the jury
could not “hear[]” what was taking place.
State Court Discussions
• As to whether a pro se party, particularly a pro se criminal defendant, can be excluded from
sidebar:
State v. Davenport, 827 A.2d 1063, 1074–75 (N.J. 2003) (“We cannot conclude
without noting our concern that the exclusion of defendant from sidebars may have
created the perception in the mind of the jury that defendant was dangerous, or not
to be trusted.”)
Snowden v. State, 672 A.2d 1017, 1021 (Del. 1996) (“By barring Snowden from
sidebar conferences, the trial judge may have adversely affected ‘the jury's
perception’ that Snowden was ‘representing himself,’ i.e., destroyed Snowden's
‘dignity and autonomy.’”)
• As to whether a party’s rights were violated by a failure to record what was said at sidebar:
Daniel v. State, 78 P.3d 890, 897 (Nev. 2003) (“‘Failure to provide an adequate
record on appeal handicaps appellate review and triggers possible due process
clause violations.’ A capital defendant therefore has a right to have proceedings
reported and transcribed.” (quoting Lopez v. State, 769 P.2d 1276, 1287 (Nev.
1989))
• As to how sidebars relate to state and federal constitutional rights to a public trial, in a
somewhat unusual case where the sidebars were held in a hallway:
State v. Smith, 334 P.3d 1049, 1051 (Wash. 2014) (“We hold that sidebars do not
implicate the public trial right. . . . Sidebars are not subject to the public trial right
under the experience and logic test because they have not historically been open to
the public and because allowing public access would play no positive role in the
proceeding.”). Judge Owens dissented as follows:
A public trial helps ensure that judges and lawyers are accountable for what occurs during trial. It helps remind them to act with decorum and to consider the consequences of their actions. . . .Public trials also help foster trust in our judicial system, and they allow members of the public to see justice done in their
communities. Logic indicates that hiding discussions over evidence and testimony in private will not further these goals. One can easily imagine a scenario where a party attempts to admit a key piece of
evidence—the ‘smoking gun’—only to be met with an objection and a private conference where the judge determines that the evidence is inadmissible. The public is left wondering what happened to the
smoking gun mentioned just moments ago and why the jury is being told to forget that it ever existed. Logically, it follows that the public's trust in our justice system will weaken. . . . Without the
publicity that comes with hearing evidentiary arguments in open court, a defendant is stripped of the protections offered by our public trial right and the public's confidence in our judicial system is
weakened.
Smith, 334 P.3d at 1067–68 (Owens, J., dissenting):
Secondary Sources Referring to Sidebars
• Judge Peter M. Lauriat, Observations from the Bench: Eight Ways to Succeed at Trial,
BOSTON BAR JOURNAL, March/April 2006, at 8: “Limit side-bars. Surprisingly to some attorneys, judges are not fond of side-bars. Needless to say, neither are jurors. A corollary to avoiding unnecessary objections is not wearing a path to the side of the bench. Both judge and jurors appreciate an economical, briskly paced presentation of evidence, interrupted as infrequently as possible. While seeking numerous side-bars may not make or break your case, it may affect the jurors’ view of your confidence in your claims or
defenses. ‘What was he or she trying to hide’ is a frequent comment from jurors when I
ask them after trial about their reactions to side-bars.”
• Edward D. Cavanagh, The Jury Trial in Antitrust Cases: An Anachronism?, 40 AM. J.
TRIAL ADVOC. 1, 34–35 (Summer 2016): “The court should take steps to minimize
distractions for the jury. Evidentiary objections can be bewildering for lay jurors.
Evidentiary issues are best handled through motions in limine prior to trial, and rulings on
these motions should not be revisited during trial. Similarly, side bar conferences are
distracting to jurors and may cause them to lose focus. Side bars should be kept to a
minimum during trial. Additionally, the court should plan the trial so as to minimize down
time for the jury. The court should always have a Plan B for a given trial day so that the
jury does not have to be dismissed for the day because a scheduled witness is suddenly
unavailable.”
• Honorable Wallace S. Gourley, Proceedings of the Seminar on Practice and Procedure
Under the Federal Rules of Civil Procedure, 28 FED. R. DECISIONS. 37, 171 (July 5–9,
1960): Effective Pretrial Must be the Beginning of Trial, “A full and thorough pretrial
conference not only serves as an invaluable adjunct in the conservation of time, but plays
a vital role in effectuating the smooth operation of the trial. The awkward and sometimes
prejudicial side-bar conference is dispensed with, since questions of law and evidence have
been resolved at pretrial. In my judgment, the side-bar conference is one of the most
distracting and disturbing features of the jury trial. Jurors become restless, and frequently
imagine false concepts, believing that material information is being withheld and
concealed, and on occasion venting their criticism in an adverse verdict against counsel
who might have requested a number of side -bar conferences. A smooth operating and
uninterrupted trial, in which the testimony is kept moving, not only makes for coherency
and efficiency, but, even more significant, wins respect for judicial administration.”
• Honorable D. Brock Hornby, How Jurors See Us, 14 MAINE BAR JOURNAL 174, 187 (July
1999): Juror Submission: “I don’t think that one can truly appreciate the trial by jury
process unless they have actually been a participant in some way. I just wish I knew what
really goes on at that side bar!”
In sum, trial judges—both state and federal—should consider the negative impression that
sidebars have on those in the courtroom before allowing them to proceed. An adoption of rules
may assist courts in navigating the potential pitfalls of sidebars, but, in the interim, courts can put
into place practices that limit the negative effects of sidebars.
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1 This rule would not apply to voir dire proceedings that some judges conduct in part at sidebar – because there is no evidence being taken. Also, this would not apply to sidebars after the judge completes the jury charge, and invites counsel to make exceptions or objections, because these are very brief and follow the close of evidence. If this post-charge conference will be lengthy, the jury should be excused.
