After a party objects to the admission of evidence, the proponent of the evidence can respond by arguing that the objection doesn’t apply or isn’t valid, or that the evidence is admissible because of an exception to the ground stated in the objection. Where that argument is made can make a big difference—should you argue in open court or in a sidebar conference?
What is a sidebar? Sidebar conferences between court and counsel are conducted quietly at the side of the court’s bench with the jury present but unable to hear what’s being said. The California Rules of Court, Standards of J Admin 2.20(b)(8) provides that judges should permit sidebars only when necessary and keep them as short as possible.
When are sidebars permitted? When sidebars are permitted, they usually follow an objection during a witness’s testimony that counsel wish to argue about out of range of the jury’s hearing. If the discussion is meritorious, the judge may suggest (or counsel may request) that the jury be excused or that argument take place in chambers then or at another time. In any event, a court reporter should be present to record the proceedings.
Why use a sidebar? Whether or not to request a sidebar usually depends on whether it’s the jury’s hearing of the objection itself, or of the response it may evoke, that would cause the prejudice that the objection is designed to prevent. A sidebar may be necessary when an objection is designed to exclude mention of specific evidence by a witness, or when counsel doesn’t want the jurors to hear argument on an objection. When extensive argument is necessary to assert or resolve an objection, or when the court will need to conduct a hearing on preliminary facts as a result of the objection, it may be necessary to request (at the bench) that the jury be excused or that the matter be taken up in chambers.
How to request a sidebar? If you believe a sidebar is needed, first object and then request permission to approach the bench. If the court refuses permission because the reason for the request isn’t apparent, indicate that the matter should be discussed out of the jurors’ presence. If the judge again refuses, you may have to state the objection in open court or request that the court defer the matter until it can be heard out of the jurors’ presence. Always consult local court rules or policies on argument after an objection to see if there’s something on sidebars.
For practical guidance on making trial objections and protecting the records, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 15. And definitely check out the essential resource, CEB’s California Trial Objections.
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