The Volokh Conspiracy

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Hot tip: If you're a lawyer, don't climb into the jury box during the other side's presentation


From State v. Rivera (N.J. Super. Ct. App. Div. Oct. 10, 2014) (paragraph breaks added):

We turn to consider what can only be described as the prosecutor's antic during the testimony of the State's first witness, Sean Burns. During defense counsel's cross-examination of Sean, the prosecutor climbed into the jury box.

When the prosecutor engaged in that bizarre behavior, defendant was assisting his attorney by operating a device used to replay segments of the recording of Sean Burns' statement to the police. Defense counsel was using segments of that recording to point out inconsistencies between Sean's testimony and his out-of-court statements. For reasons not clear on this record, the device was on the prosecutor's table. Defendant, with the judge's prior approval, was seated there.

"For the record," the prosecutor said: "Mr. Rivera is actually set up [at] the State's table using [a] laptop computer hooked onto the projector, using the microphone from the witness stand in order to play the sections, and I believe Mr. Rivera is actually doing that." With that introduction, he advised the judge, "The State is trying to find somewhere to be. So I think just so it's clear on the record."

Indicative of the lack of context of a statement about the clarity of the record, the judge asked, "What's clear?" The prosecutor said, where Sean Burns "was looking."

The prosecutor apparently found somewhere else to be for some time. He did not get into the jury box until cross and redirect were completed. He did that during defense counsel's re-cross. Defense counsel asked Sean whether he had told an officer that he thought defendant was "a sissy." And after that, defense counsel asked his client to set up the video.

The judge addressed the prosecutor as follows: "Mr. Herring, can you please come out of the jury box? I don't want you that close to the jury." As defendant attempted to set up the video, the judge called the attorneys to sidebar, but he spoke to them off the record.

Thereafter, defendant's lawyer told his client that they would play the video later. The prosecutor called his next witness.

The following day defense moved for a mistrial based on the prosecutor's untoward incursion into the jury box. Defense counsel noted that he had not seen the prosecutor get into the jury box but saw him climbing out of it when the judge addressed him. At oral argument in this court, the State confirmed that there is no entrance to the jury box from the area of the courtroom where counsel tables are located.

During his argument on this motion for a mistrial in the trial court, defense counsel acknowledged that he did not know why the prosecutor climbed in but asserted that it was "highly inappropriate." He suggested that the prosecutor could have been "trying to engender [sic] himself to the jury" or "trying to give an indication that he was afraid of [defense counsel's] client."

Defense counsel noted, as the judge had implied at the time of the incident, that there were other places the prosecutor could have gone. Defense counsel suggested that the action invaded the province of the jury.

There is no question that the prosecutor invaded the "space" reserved for the jury. In defense counsel's opinion, the conduct was so unheard of and so improper as to warrant a mistrial. He indicated that it was the "craziest" thing he had ever seen done.

The prosecutor noted that he was just looking for a place to stand and write. He acknowledged that it was "probably not the best place for [him] to stand." He did not, however, offer any other explanation beyond the need for a place to stand and write, which he said he could do inside the jury box….

[T]he prosecutor's action was, at best, a distracting antic inconsistent with the seriousness of the prosecutor's obligation to do justice and undoubtedly a distraction to the jurors. The fact that the prosecutor made a "record" in advance, suggests a plan. Although one cannot discern what the individual jurors actually inferred from the behavior, we cannot rule out the likelihood that one or more of them would have inferred what defense counsel suggested—fear of his client.

The conduct could have easily led one or more jurors to infer what the prosecutor allowed to be implied—that defendant was too dangerous or untrustworthy to be near….