THE PROBLEM: In a perfect world judges make decisions by applying legal analysis to the facts of a case in a rational, fair and deliberate manner. But in the real world, we know that judges, despite their best efforts, are often subject to the same foibles, biases and imperfections that affect everything humans do. We would love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by a variety of non-relevant factors that may be so subtle that they go mostly unnoticed by attorneys, the parties and most importantly, judges themselves. In order to keep this update short and concise, these non-relevant factors are broken down into two main categories:
1) IMPLICIT BIAS; and 2) DECISION FATIGUE.
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GENERAL RULE: Transcripts of audio recordings to be played during trial may be provided to the jury to help the jury or judge understand what is being said in the recording. The following are 7 topics of interest that include information about using audio recordings and transcripts at trial that judges and attorneys need to know:
1. Audio recordings must be admitted into evidence;
2. The need to provide transcripts to the jury during audio playback is generally caused by two circumstances;
3. Procedure for use of a transcript during the audio playback;
4. Who has responsibility for producing the transcript;
5. Protecting your court reporter – or they may suffer the consequences;
6. “Olkon” cautionary instruction on use of transcript of audio recording;
7. Replaying audio recording during deliberations.
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Note for Judges Willing to Mentor and Educate: As most trial judges know, many attorneys do not know how to properly impeach a witness using a deposition or other prior inconsistent statement. Following jury trial many attorneys ask the presiding judge for constructive criticism on the attorney’s performance during trial. These post-trial judicial critiques are golden opportunities for the judge (if willing) to mentor and educate a young attorney. This training update and sample impeachment scripts are intended to serve as a set of general principles and guidelines for trial attorneys to learn and follow.
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