Evidence that is deemed boring shall be excluded.Here is an excerpt from yesterdays daily transcript of a trial I'm attending.
11 MR. LINCOLN-SAN-JUAN: Your Honor,
12 I'm going to object. I don't know if a
13 person had the same number of employees
14 throughout the whole course of the two
15 years.
16 This is getting so, I think,
17 boring. I'll say that much, but
18 really, it's I don't know if the person
19 had the same number of employees
20 throughout the two years or whether it
21 was for -- or whether he increased them
22 or decreased them -- whether the
23 witness knows or what. I would suggest
24 we start –
[. . . ]
9 (At sidebar:)
10 MR. VAZQUEZ [the AUSA]: We know that time is
11 of the essence, and that we didn't
12 expect this to happen today, but now
13 we're going to request the protection
14 and the supervisory power of the Court.
15 Before we went to the break,
16 Mr. Lincoln stood up and made as part
17 of an objection, mentioned that this
18 matter was boring, to the point that
19 the jury laughed.
20 That, Your Honor, affects the
21 decorum and the seriousness of the
22 proceeding. We felt insulted, and we
23 still feel insulted.
24 The duty of counsel is to maintain
25 the decorum as officers of the Court,
1 and I would respectfully request from
2 this Court its protection and give a
3 curative instruction to the jury as to
4 that specific incident and to totally
5 disregard it.
6 This is a very serious matter.
7 Now I am requesting the protection and
8 the supervisory power of the Court to
9 this effect.
10 THE COURT: Mr. Lincoln, it's your
11 turn now.
12 MR. LINCOLN-SAN-JUAN: My turn?
13 THE COURT: Yes.
14 MR. LINCOLN-SAN-JUAN: I really
15 have nothing to say, other than I do
16 not agree with counsel's tone as to
17 saying this.
18 Well, he's raising his voice as he
19 said it, so I have to put that on the
20 record, as well.
21 Yes, it was getting rather boring.
22 I don't see how it is humanly possible,
23 Your Honor -- and I bring this to the
24 Court's attention right now, because
25 under Rule 602 of the Federal rules of
1 evidence, a witness should not be
2 allowed to testify based upon matters
3 that -- should testify based upon
4 matters that he or she knows about.
5 Guessing and speculating should
6 not be permitted, and I don't see,
7 quite frankly, why we tell jurors all
8 the time, the Court instructs them,
9 counsel argues this all the time; that
10 jurors are not to lose their common
11 sense when judging in cases, and I do
12 not think that judges lose their common
13 sense when they're dealing with cases
14 either.
15 I think quite the contrary, and I
16 don't see how one can fairly say that
17 it is humanly possible for this witness
18 to be testifying to all that the
19 Government is bringing out of him of
20 all these different people year by
21 year, drug points by drug points.
22 THE COURT: But it hasn't varied
23 that much.
24 MR. LINCOLN-SAN-JUAN: That he can
25 be able to state -- I don't know what I
1 earned in '95 -- that's my earnings --
2 I don't know what I earned in '96 -- I
3 don't know what I earned in '97. And
4 this witness can tell not only what he
5 did, but what 20 other people did and
6 what guns each one had year per year,
7 what drug amounts they sold on a weekly
8 basis, each one of them.
9 Your Honor, it gets to the point
10 where it's absurd.
11 Then the other thing is, Your
12 Honor, Your Honor has requested that we
13 expedite these proceedings as much as
14 possible. As defense counsel, we have
15 to some degree one problem; that we
16 have clients that may not be amenable
17 to certain stipulations that otherwise
18 counsel would enter into.
19 So that precludes us from being
20 able to stipulate to some things. But
21 other than that, I don't know what the
22 Government is really driving at with
23 all this tedious, repetitive evidence.
24 It is, in fact, getting quite boring,
25 and quite repetitive and, really, of
1 people that are not even here, that are
2 not even -- are so almost collateral
3 and unnecessary, really, for this whole
4 conspiracy thing that they're bringing
5 that it gets to be absurd, and
6 Mr. Vazquez wants to play like he's
7 seeking the protection of the Court,
8 and he's really offended and all this.
9 Well, I am offended by having to sit by
10 listening to Mr. Vazquez trying to drag
11 this from a witness that I do not
12 humanly think is possible for a person
13 to remember.
14 MR. VAZQUEZ: May we reply to
15 that, Your Honor?
16 THE COURT: Go ahead. Briefly,
17 because I don't want to make this an
18 everyday situation that now --
19 MR. VAZQUEZ: Mr. Lincoln had all
20 the time in the world to talk.
21 We have a duty to prove a case
22 beyond a reasonable doubt with all the
23 evidence in light of the sentencing law
24 and all the situations; I have to duty
25 to do that before the jury.
1 Number two, my claim at this time
2 does not in any way preclude
3 Mr. Lincoln or any of the other
4 attorneys to bring arguments of law
5 before this Court. What we're
6 objecting to is the method that's being
7 done. He can simply object and give a
8 ground, and if it's to be discussed, it
9 can be discussed at the sidebar out of
10 hearing of the jury.
11 What's been happening this
12 afternoon is a lot of objections with a
13 lot of improper objections and
14 arguments.
15 THE COURT: What are lots? You
16 mentioned one.
17 MR. VAZQUEZ: There was another
18 one.
19 THE COURT: Bring it out.
20 MR. VAZQUEZ: The record, in fact,
21 read --
22 There was improper comment by you
23 of conspiracy. The record read it was
24 drug operation, not conspiracy, and I'm
25 at blame that I did not go on the
1 record at that time, and I still invite
2 the Court to check that record, but
3 that was passed.
4 At this time, Your Honor, the
5 allegations that have to do as to
6 evidentiary matters are not at issue.
7 The issue are the way they're
8 happening, and now it crossed the line
9 when he simply told the jury that the
10 Government's actions were boring, to
11 the point that the jury laughed. That
12 detracts, and we respectfully request
13 an instruction regarding that matter to
14 the jury.
15 THE COURT: What is the
16 instruction you propose?
17 MR. VAZQUEZ: Regarding a comment
18 of counsel as to the fact that the
19 proceedings followed by the prosecution
20 are boring, that's totally stricken
21 from your mind, and this is a serious
22 matter, and that type of comment is out
23 of order, something to that effect.
24 I go to the wisdom of the Court in
25 setting the words, but that's the idea.
1 Right now, before that jury, it was a
2 big joke, and that should have never
3 happened, because objections are
4 objection grounds, and then sidebar
5 discussion out of the hearing of the
6 jury.
7 MR. LINCOLN-SAN-JUAN: I said this
8 was getting repetitive, and it was
9 almost getting boring or getting
10 boring.
11 MR. VAZQUEZ: He said it's boring.
12 MR. LINCOLN-SAN-JUAN: Well, it
13 is. It's repetitive.
14 THE COURT: Did you finish?
15 MR. LINCOLN-SAN-JUAN: Well, I
16 interrupted him, quite frankly, but I
17 would also, if Your Honor is inclined
18 to give an instruction, then I would
19 also request from the Court -- I don't
20 think that the Court should be giving
21 an instruction of that. The Court will
22 decide.
23 MR. VAZQUEZ: This is a serious
24 matter.
[. . .]
15 MR. VAZQUEZ: May we just request
16 a very slight, since the jury laughed,
17 just a simple instruction to them that
18 the remark involving about boring,
19 please strike that remark, and that's
20 without even mentioning the word
21 "counsel". Because they laughed, and
22 we submit that will take care of it,
23 and we submit that the decorum was
24 misused, and the position of the
25 Government was severely prejudiced.
1 THE COURT: I'll tell you what
2 I'll do --
3 MR. VAZQUEZ: Disregard any remark
4 involving boring case, and that's it.
5 THE COURT: Why don't you get up
6 and you state to the Court when the
7 jury is here that the remark that you
8 had stated that the case was getting
9 boring shall be stricken, and I'll say
10 fine, I'll agree with you, and then it
11 does not sound like I am directing it
12 as to you.
13 MR. LINCOLN-SAN-JUAN: Your Honor,
14 I agree with the matter that it was
15 improper for me to say that, but I do
16 and I still submit to the Court that
17 other than for what Your Honor has
18 pointed out, that that could have been
19 taken care of in about two minutes,
20 that testimony. It has been extremely
21 repetitive and drawn out.
22 MR. VAZQUEZ: We object to that,
23 and the ruling is clear.
24 THE COURT: Fine, but the ruling
25 would be that the Court would not think
1 that it's repetitive yet, because the
2 Court insists that --
3 MR. LINCOLN-SAN-JUAN: And
4 speculative of this witness.
5 THE COURT: That can come out in
6 cross.
7 MR. LINCOLN-SAN-JUAN: That's part
8 of the Federal Rules of Evidence too,
9 Your Honor.
10 THE COURT: But it can come out in
11 cross.
12 MR. LINCOLN-SAN-JUAN: That's why
13 I'm saying part of our frustration is
14 we're making arguments under the
15 Federal Rules of Evidence that are
16 addressed to the Court, and the Court
17 is saying, you handle it, and that's
18 part of the frustration we're
19 experiencing with, quite frankly.
20 THE COURT: I'll tell you what
21 I'll do: Either you get up and state
22 that you wish that that comment be
23 stricken, or I will tell the jury the
24 comment "boring" is to be stricken from
25 the record.
1 MR. LINCOLN-SAN-JUAN: Whichever
2 you prefer, Your Honor.
3 THE COURT: I will state it then
4 that the comment as to "boring" is
5 stricken from the record.
6 MR. VAZQUEZ: Thank you, Your
7 Honor. That will suffice for us.
8 - - -
9 (In open court, jury present:)
10 THE COURT: Ladies and gentlemen,
11 the comment about that the case was
12 boring is ordered stricken from the
13 record.
I'm certain that from then on the jury no longer thought the prosecutor's presentation of evidence was boring. That was yesterday. Today I was hoping to catch a couple of jurors falling asleep and then move to request that the Court instruct the jury that while some of the evidence has been boring, they should make an effort to pay attention.
