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Judge Tells Attorneys to Zip It.

By Edward A. Brutscher, Esq.

Interesting article in the Courier Journal today, titled Judge tells attorneys to zip it. The Courier reports statements attributed to Judge Sean R. Delantey, saying "that certain prosecutors were wasting court time by making "obnoxious, ridiculous, abundant and useless objections" during probable-cause hearings." Apparently Judge Delantey has a written policy that prosecutors have a "standing objection to each and every question" that defense attorneys ask of witnesses during probable-cause hearings. Judge Delantey was quoted; "I believe I have the discretion to do this."

County Attorney Irv Maze was quoted as saying; "I'm just shocked." "I don't know what's going on in his mind. We all go by the same rules." The County Attorney has requested his prosecutors abide by the Judge's request until the issue can be decided by appeal.

Of course the problem with the Judge's rule regarding standing objections, is that the objection must be made in the first place. Only if it is overruled and the objectionable questioning continues does a standing objection need to be placed. The way it appears in the article is Judge Delantey simply notes an objection by the prosecutors to "every" question asked, allowing them to argue later the evidence should not have been admitted.

The issue is obvious, who knows if the County Attorney's office would have objected if they never voiced an objection in the first place. An unvoiced objection is considered waived. This creates a problem. The County Attorney's office may later be considered to have waived any objection not specifically made at the time the question was posed, OR it essentially allows them to make objections to specific questions after the hearing.

The rule is procedurally improper and actually detrimental to defense attorneys and prosecutors who both may be bitten by it on appeal. The fact the Judge believes he has the discretion to set aside the rules of evidence and create his own exception is concerning. The threats of holding attorneys in contempt for violating the self imposed "policy" is simply wrong.

Full post as published by Kentucky Tort Journal on February 06, 2008 (boomark / email).