Permissibility of ex-parte communication for judges in the US Watching some legal movies it struck me as odd where judges are portrayed talking to one of the parties in the absence of the other (ex-parte communication). Say in New Zealand, this amounts to judicial misconduct (Guidelines for Judicial Conduct at [30]): Communication between the judge and any party in the absence of the other party to the case is not permissible, except in proceedings properly heard ex parte. Some examples: In A Time to Kill, the judge is once shown walking down the street friendly talking to the state attorney/prosecutor (Jake and Oliver see them while sitting in a cafe just before Ellen Roark arrives). In another scene, the judge invites Jake to his house to tell him that his application for change of venue is denied. in Jagged Edge, Teddy just knocks on the Judge Carrigan's door and, although he says that he can't talk to her, she begs him and he lets her in. Funnily enough, they both pretend to be talking about a hypothetical case. In The Untouchables, Ness talks to the judge in his chambers, shows him a piece of paper where the jurors (as well as the judge himself) are listed to be on Capone's payroll, and persuades him to switch the jury. Was/is it permissible for judges in the US to talk ex-parte like that? If yes, how come? If no, do the above scenes in the movies essentially portray judicial misconduct? Related: Ex-parte communication between a Judge and Prosecutor - ethical breach or canon violation?
Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' &amp; judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter.
The judge's instructions state: You have been allowed to take notes during the trial. You may take those notes with you to the jury room. You should not consider these notes binding or conclusive, whether they are your notes or those of another juror. The notes should be used as an aid to your memory and not as a substitute for it. It is your recollection of the evidence that should control. You should disregard anything contrary to your recollection that may appear from your own notes or those of another juror. You should not give greater weight to a particular piece of evidence solely because it is referred to in a note taken by a juror. There is a pattern instruction in Washington that addresses requests to rehear testimony: In making this decision, I want to emphasize that I am making no comment on the value or weight to be given to any particular testimony in this case. The testimony you requested will be [read to you] [replayed for you] here in the courtroom. You will hear it only one time. After you have heard the testimony, you will return to the jury room and resume your deliberations. When you do, remember that your deliberations must take into account all the evidence in the case, not just the testimony that you have asked to rehear. The notes on use state "Although judges have discretion in responding to these requests, the case law disfavors repeating trial testimony for deliberating jurors", followed by the state of the relevant case law. The central point in that discussion is: The concern addressed in the case law is that rereading requested selections from a trial transcript can lead jurors to give undue emphasis to the selected testimony. and an additional concern is that reading the trial transcript selections to the jurors could constitute an unconstitutional comment on the evidence. and finally jurors often request the testimony of a single witness rather than requesting balanced testimony from multiple witnesses that more accurately reflects the positions taken by both parties. If the judge grants such a limited request, then one party's version of the case might be unduly emphasized, yet if the judge expands on the request by repeating the requested testimony along with other relevant testimony, then the judge runs the risk of improperly commenting on the evidence. Minnesota criminal procedure rule 26 Subd. 20(2) addresses the matter of rehearing evidence, saying that the court can allow a hearing of specific evidence: (a) If the jury requests review of specific evidence during deliberations, the court may permit review of that evidence after notice to the parties and an opportunity to be heard. (b) Any jury review of depositions, or audio or video material, must occur in open court. The court must instruct the jury to suspend deliberations during the review. (c) The prosecutor, defense counsel, and the defendant must be present for the proceedings described in paragraphs (a) and (b), but the defendant may personally waive the right to be present. (d) The court need not submit evidence beyond what the jury requested but may submit additional evidence on the same issue to avoid giving undue prominence to the requested evidence. This rule where judges have discretion is a change from an earlier rule where judges had an obligation to allow rehearing. When there is no obligation to allow rehearing, the "safer" path is to not allow rehearing. In State v. McDaniels, 332 N.W.2d 172, the appeals court notes that The judge reasoned that to read the requested portions of the two police officers' testimony would give undue prominence to that portion of the evidence. The prosecutor argued that three or four other witnesses had testified regarding Fifth and Royalston. The testimony was widely scattered throughout the transcript between direct and cross-examination. To locate all references would be burdensome and impractical thus reflecting the reasoning underlying the Washington instruction. In State v. Rean, 421 N.W.2d 303, 306 (Minn. 1988), the court turned down a request to rehear testimony, saying "You will have to rely on your memory of the testimony". The Supreme Court concludes that "To avoid giving undue prominence to the testimony requested, and in light of the difficulty of providing all relevant testimony, the jury's request was rejected". It then observes that "Simply because the jury apparently felt that it was at an impasse did not mean that the trial court was obligated to grant the jury's requests". The court rejected "the wooden approach of always granting a request, even an unreasonable one, if the jury says it is at an impasse" We do not know what objections the prosecution and defense raised regarding the request to rehear, but if one side would likely benefit from a rehearing, the other side is entitled to a "balancing" rehearing (the rules allow the jury to be directed to consider testimony that they did not request a rehearing of); and tit might have been onerous to assemble that evidence.
Yes, you can ask permission from the court. From this page (by a firm of solicitors): Recording a conversation in secret is not a criminal offence and is not prohibited. As long as the recording is for personal use you don’t need to obtain consent or let the other person know. [...] A private recording can be submitted as evidence, but with some conditions: A recording may be relied on in evidence if the court gives permission An application for permission should be made on form C2 The recording should be made available to other parties before any hearing to consider its admissibility. So yes you can probably use it, but you can't play Perry Mason and suddenly produce it in the middle of the court hearing. Talk to your solicitor.
Judges simply do not supervise each other in a courtroom in terms of keeping each other "honest." That's simply not how the courts work. Judges are independent in order to not be influenced by bias. A judge would look very unkindly upon a lawyer who requested another judge be in the courtroom in an extra-judicial sense, or in some sort of legal sense as (wrongly) perceived by the lawyer. A lawyer is an officer of the court, and as such, knows what is legal in an administrative sense, and would simply not request another judge be in the courtroom. A lawyer can request a different judge be assigned or take over a case, but the request must generally have a legitimate reason that has a legal basis, i.e., a documented conflict of interest on the part of the judge, or evidence of racial bias. And it is up to the court to grant a change. Yes, judges have been found to be corrupt and have been removed from the bench. But that doesn't happen very often, and that removal is part of the judicial process to keep judges honest and get rid of "bad" judges. Yes, judges do issue rulings that are struck down on appeal; that's why there is an appeal process. That is the legal mechanism to keep judges "honest." So, the remedy for what is perceived as an unfair judge or a biased ruling is an appeal to a higher court.
The Justices communicate by exchanging written memoranda, or at least they did during Justice Stevens’ time. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007), p 48: Outsiders tend to be surprised by how rarely Supreme Court justices speak to each other, one on one. Under Rehnquist, the nine spent a good deal of time together as a group. Argument days, most Mondays and Wednesdays when they were in session, were preceded by the traditional thirty-six handshakes, each justice with every other, and they had lunch together most of these days as well. There were also conference discussions every Friday during these weeks. After the conference, however, the justices tended to communicate with one another through memos, which were often drafted by their law clerks. (After e-mail became ubiquitous, the memos also circulated electronically, but always with paper copies as well; among the justices, only Thomas and Breyer, and eventually Stevens, were fully comfortable communicating by e-mail.) Some further detail about the distribution of these memos appears later in an anecdote about Bush v. Gore (p 170): Stevens drafted an order of just a few sentences remanding the case to the Florida Supreme Court for the setting of a statewide standard to continue the recount. He sent his messenger scurrying down the marble hallway to Kennedy and the rest of the justices. He heard nothing back, except from Ginsburg, who said she would join if it was a way of bringing the whole Court together. (The rush of events in Bush v. Gore strained the Court's technology, which was, in 2000, still rather primitive. As a security precaution, the e-mail system circulated only within the building. Plus, there was only a single, communal computer from which the justices and clerks could obtain access to the Internet. Because only Thomas and Breyer used computers regularly at the time, there was little pressure from the justices to update. For the most part, the justices communicated with one another by hand-delivered memos, which were typed by their secretaries.)
So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because &quot;a reviewing court resolves neither credibility issues nor evidentiary conflicts.&quot; People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you.
Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH.
Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case.