A DEFENDANT'S GUIDE TO COURTROOM ETIQUETTE
	Mr. Sullivan wrote the following article for Crime, Justice & America Magazine in 2001, and it has been reprinted many times since in CJA and other legal periodicals.

The demeanor and attitude of a defendant while he or she is in court (or even in the courthouse surroundings) is always very important, especially if defendant is in trial or appearing at sentencing.

The way the prosecuting attorney perceives the individual whom he or she is trying to convict, the way the probation officer perceives the person whom they are likely to evaluate, and the way the judge perceives the defendant whom he or she desires to give a fair trial, fair rulings, and possibly a fair sentence, all are of utmost importance.
But the opinion jurors have of the defendant is most important. In fact, jurors are instructed that one of the many factors that they can and should take into consideration in determining the credibility of a witness (including the defendant) is his or her demeanor, and the attitude the witness maintains in court.

The rules I will discuss will be primarily addressed toward out of custody defendants, keeping in mind that some do not apply to in custody defendants, especially in the area of promptness in court or their courtroom attire. One important thing to remember is that in the event of a jury trial, the jury will never know (unless the defense wants them to) that a defendant is in custody. The defendant has the right to wear "civilian" clothing, and the procedure by which the jury enters and leaves the courtroom is designed to avoid their knowing that the defendant is in custody.

Whenever defendants appear in court, ideally they have an attorney with them at all times. Sometimes, especially at the arraignment (the first court appearance) they do not. But whether or not they have an attorney with them, the rules of behavior are the same:

ARRIVE EARLY:
A criminal defendant should have made all necessary arrangements to arrive at the courthouse, and eventually at the appropriate courtroom, about 30 minutes early. Never park illegally, and never risk being seen in an inappropriate vehicle or with inappropriate acquaintances. Prosecutors and courtroom deputies can and are very curious in this regard.

Arriving early will give you an opportunity to familiarize yourself with your surroundings, meet and confer with your attorney regarding any last minute questions or comments, and will assure that you will never be late for your appearance. When you arrive early, you may find the courtroom door locked. Sit quietly on the bench nearest your courtroom, and be sure to follow all of the instructions of the bailiff or courtroom officer. Often, an attorney will arrive late for a court appearance, but judges understand that they usually have to be in more than one courtroom at a particular time. Even if your attorney is not in the courtroom, you should always be seated there, and do not leave unnecessarily. Judges always make a mental note of defendants who arrive late, and they are sensitive to defendants who sit in court patiently and politely for their attorney to arrive.

Never arrive late for a court appearance. Judges do not like it. They feel that they have to be on time for court, and you should as well. Some judges consider it a major transgression, and take defendants into custody when they arrive late. But all judges consider it impolite, and indicative of an irresponsible individual who obviously does not take his criminal case seriously.
 

DRESS TO IMPRESS (WIN):
You never have a second chance to make a first impression, and your courtroom attire says a lot about your attitude and respect for the court and the judge. I always tell my clients to dress as if they were going to church, to a funeral, or on an important job interview. Personally, I do not care whether you are a professional or not, this is the most important thing going on in your life right now, and I want you to take every opportunity to gain the upper hand. I know that I try at all times to be the best dressed lawyer in the courtroom. It is my goal that no DA is ever been better dressed, more appropriately dressed, or more expensively dressed than I, especially when I am in trial, and this helps to give me confidence. There is no reason that you should not be the second best dressed person in the courtroom. (This always annoys the DA.)

If you happen to wear suits to work, wear them to court. If you do not, you should be prepared to invest in one. You do not need to buy an entire wardrobe, even if you are going to be in a prolonged trial.

Obviously, one must also make sure he or she is well groomed, alert, and in the right frame of mind. (This obviously applies to in custody defendants as well.) Haircuts are mandatory, as is good grooming. No visible tattoos, and no facial jewelry of any kind for men. The formality of dress clothes and good grooming results in added confidence, intimidation of the prosecutor, and recognition by the judge that you are showing respect for the court. But it is the jury who will decide your fate, and if they come into court for the first time, they should not be able to tell who is the attorney, and who is the criminal defendant. If you see them looking around for the defendant, then you know that they will be impressed with how seriously we take our case.
 

ATTITUDE:
It is always important to show respect for the court. Answer the judge's questions in a loud, clear and confident voice, and always answer, "Yes, sir" and "No, sir." Attorneys address the judge as "Your Honor." As a defendant, you may do this, but I like you to address them as "sir" or "ma'am," because when a defendant addresses the judge as "Your Honor," it sounds as if he has been prepped by his attorney. This is not a bad thing, but if you answer the judge's questions with a "Yes, sir" or a "No, sir," it will indicate to the judge that you are not just doing what your lawyer prepared you to do, but that this is the way you speak in normal polite conversation with people whom you respect.

This says a lot about you. Look the judge in the eye when you speak with him or her, but don't be afraid to ask permission to consult with your attorney if you need to.
 

CONTACT WITH THE PROSECUTOR:
Some prosecutors have the bad habit of talking indirectly to, and sometimes indirectly with, a defendant. Some talk to the attorney while in close proximity to the defendant under the guise of talking with the attorney, others will make small talk with you. My rule is for my clients is to totally ignore the prosecutor if and when this should happen. This is for many reasons, the two most important of which are that he, the prosecutor, is committing an ethical violation, and he probably is doing this to attempt to gain information or a tactical advantage. Remember, the prosecutor is your worst enemy. Being nice to him sends a bad message, that you have some sort of respect for him, and that you want to endear yourself to him. But ignoring him lets him know that you are not worried about what he thinks of you in terms of your respect for him. You are not going to show any sort of respect for a lawyer who wants you convicted, because his evaluation of the case and his going forward with your prosecution is a reflection of his poor judgment and case evaluation. Secondly, the reason he is committing an ethical violation (however slight) is probably so that he can gain some insight into your personality.

There is one exception to this rule, and that is if the court instructs you to answer the prosecutor's questions, as in the example of your giving a time waiver or responding to questions about rights and consequences of a plea bargain. Your attorney will instruct you as to what is going to happen in such an instance.
 

WHEN YOUR CASE IS CALLED
As soon as your case is called, stand up and come forward. Unless yours is the very first case called that morning, you will have already seen other litigants approach their attorney, and will know what the courtroom deputy expects of you. Do not put your hands in your pockets, and don't have anything in your hands, other than possibly some paperwork you need to have the judge inspect, etc. females should not have their handbag with them. It should be left on their seat when they approach. Stand up straight, and stand immediately beside your counsel. Speak only if your attorney instructs you to. Even if a routine question is asked, do not volunteer the answer unless your attorney instructs you to do so. Remember, as a criminal defendant, you have the absolute right to remain completely silent, and you should keep this in mind at all times. Sometimes, a seemingly routine question is asked, such as how you pronounce your name, or your date of birth. Your attorney should know enough about your case to answer those types of questions himself, but if he does not, whisper the answer to him or her, and let them speak for you.

There is a difference between a whisper and speaking softly. A whisper is a form of speech without the use of your vocal cords. Speaking softly is just that, using your vocal cords, but quietly. My rule is that you should never speak to your attorney or someone sitting with you. You should always whisper, because it is more polite, and no one can hear you but the person to whom you are talking.
 

MOTIONS AND OTHER "LONG CAUSE" MATTERS.
When your case is called for a hearing that is expected to last more than a minute or so, or if your appearance is for trial or the taking of testimony, your lawyer or the judge will probably instruct you to sit at counsel table. He will instruct you as to where to sit, but sometimes the courtroom officer will move you. You will, however, always be seated in close proximity to your lawyer. Feel free to whisper to your lawyer, but do not do so while a witness is testifying or the court (judge) or another attorney is speaking. Your lawyer needs to give that person his undivided attention, and your whispering to him during someone else's speaking will be counter-productive. If your attorney is on top of things, he will have already provided you with paper and pen, for you to make notes of questions or comments you need to tell him. At the appropriate time, your lawyer will read your notes, consult with you, and act accordingly.

If you are in a jury trial, it is customary to stand whenever the jury enters or leaves the courtroom.
 

KEEPING A POKER FACE.
It is very important that you maintain your sense of innocence at all times, but you should never react negatively (or positively) to any testimony. The jury expects that you have heard or read all of the negative evidence before you hear it from the witness stand, so if you were to react negatively to certain evidence, you could be tipping them off as to what evidence is true and what is not true. For example, you may hear an adverse witness testifying about all sorts of incriminating evidence, and then hear something that causes you to react with body language or different demeanor. This immediately tells the jury that all of the previous incriminating evidence is true, and that you only dispute the most recent testimony. If you simply keep a poker face, that is, sit quietly and politely through the entire trial, they will not be tipped off as to what you dispute, and what you don't.

Because you as a defendant have the right to go last, after all of the prosecution evidence has been laid out, and the right to remain silent and testify if and only if you decide to, the jury will have a tendency to keep an open mind and give you the benefit of the doubt.
 

LEAVING THE COURTROOM:
As soon as your matter has been concluded, you will undoubtedly have some follow up questions to your lawyer about what just happened, and when you need to be in court again. Do not ask him any questions while standing with him at counsel table. There will be another case called immediately after yours, and sometimes your attorney will be involved with that case. Wait until you have exited the courtroom, and your attorney will likely follow you outside into the hall. Be careful not to ask any questions until you are both alone and in a quiet place. Sometimes the prosecutor will be leaving the courtroom at the same time, and you certainly don't want anyone, especially the prosecutor, to hear what you are saying to your lawyer. Most of the time, your lawyer will tell you to write your questions down, and call him at the office later in the day. On other occasions, he may need to explain certain things to you immediately, such as where to go before leaving the court complex.

In any event, do not ask for any advice while you are still in the courtroom, as it is impolite to the other litigants who want and expect the court's complete attention.

© Copyright 2001