Is This Really the Prosecutor’s Table? Advocating for the “Best” Seat in the Courtroom

In courtrooms across the State of Michigan there is thought to be a “standard” seating arrangement. Venerated by usage and consecrated by time, this seating arrangement provides that the party with the burden of proof always sits closest to the jury. In a criminal case, this almost always means the prosecutor’s “table” is positioned next to the jury box and the defense attorney’s table ends up on the other side of the lectern, farthest away from their “jury by right.”

Additionally, in most courtrooms, the witness seat is also closest to jury. Because the most common arrangement is for the witness’s seat to also be closest to the jury, most often in criminal cases this means that the prosecutor sits directly across from and facing the witness. The result is that the party with the Constitutional right to confront witnesses, the defendant, is seated much farther away from the witnesses, often without a clear view of them while testifying. The question that obtains - “must this be so?” The answer appears to be a resounding “no!”

This “standard” seating arrangement whereby the prosecution sits closest to the jury is not regulated or covered by statute, formal court rule, or binding precedent. Nevertheless, to enable the trial court to conduct the trial with dignity, decorum and dispatch and maintain impartiality, the law necessarily vests in the trial judge a wide discretion. This discretion naturally includes control of seating arrangements for parties, counsel, and witnesses. Judges retain broad discretion in the trial court to govern the seating arrangements in the courtroom.1

Where May the Criminally Accused be Seated? Moving from the Cage to Counsel Table

Even things as seemingly mundane as seating arrangements, along with much of our founding jurisprudence, was originally imported from England. As might be imagined, in the medieval epoch, courtrooms were much more austere and archaic than today’s modern courtrooms. In those days, the most common arrangement would be such that a wooden barrier alone, known as the “bar” (“barreau,” in English “bar”), served to define the space within which justice was set to be accomplished.2 Initially only the judge and staff were allowed within this defined space. Strange as it seems when viewed within the context of today’s adversarial system, in days past the lawyers, jurors, the public, and even the defendant, remained outside this defined space.3 There was, however, far less uniformity across the lands and jurisdictions, and while this may have been the arrangement most common among them, owing to the fact that courts were often held in a variety of locations, the configurations of these justice spaces and the position of participants within and outside the bar, varied from place to place. For example, sometimes some judges might allow others to venture inside the bar, including the lawyers.4

In fact, it appears that this “right” to move about within the justice space is from where the term “member of the bar” originates. However, it was not until much later that either the defense attorney or the criminally accused would be routinely be allowed behind the bar. In earlier days, like much of England, the legal profession was a caste-system, and this resulted in a demarcation between barristers and solicitors, a designation that has survived in England to this day. Prosecutors and defense attorneys were both barristers and when they were later allowed behind the bar, they would most often sit side-by-side at the bar table. The accused meanwhile had become less central to the case and would often be moved to the margins, typically in a bale dock at the back of the courtroom.5 The configuration of the bale dock varied as well, but generally a bail dock was a demarcated holding area where groups of prisoners awaiting trials sat or stood together. In some cases, the bail dock looked like a cage and had metal bars, whereas in others, it was a glass enclosure.  In still others, it was simply a more open space with neither glass nor bars to define its location.

The United States never adopted the barrister or solicitor model. Nevertheless, and while somewhat more egalitarian because all lawyers are members of the same bar, in the United States all lawyers are not necessarily co-equal. At the very least there are trial lawyers, appellate lawyers, transactional lawyers, and often dozens of bar “sections.” Also, prosecutors are most often government employees at some level, though in many states including Michigan self-employed lawyers can negotiate contracts and be paid to handle the civil and limited criminal work for a governmental entity. Defense attorneys on the other hand, when not part of a taxpayer funded public defender’s office or otherwise paid by the State or County, are most often self-employed and paid directly by their clients.

Unlike the barrister/solicitor designation, the bale dock did survive American independence, but not for long. As American jurisprudence began to evolve, the dock was eventually viewed with a jaundiced eye, and over the last two centuries American courts have granted the criminal defendant increasing levels of autonomy to choose where he or she will sit during trial. Our courts have previously allowed the defendant first to leave the “prisoner’s dock” – the railed pen in which he/she once stood during trial – and then to join his/her lawyer on the other side of the “bar,” even as England and Canada had continued to confine the defendant to the dock.6

Most often this liberty to move about the courtroom is not unfettered.  The size, arrangement, configuration, decorum, judicial influence, and even the furniture within a courtroom setting may impact whether lawyers are able to leave their seats to move about the courtroom. Even where there are no physical limitations, judges largely retain authority and may define and control the degree of such movement. Judges also may control who sits where in the courtroom, and case law largely supports this as an unfettered authority.

The traditional courtroom layout itself arose out of a confluence of factors, including longstanding tradition, political and social values, and legal reforms. The dock, the bar table, the witness stand, and the jury benches all encapsulate sets of social relations, some bearing traces of earlier eras.7 One of these longstanding traditions appears to be that the party with the burden of proof sits closest to the jury.8 This is a tradition because there is no court rule, statute, or law that supports this tradition.  However, apparently in violation of this tradition only, a court does not abuse its discretion by seating defendants closer to the jury.9

The Benefit of Proximity to the Jury

The question that obtains from all of this then is whether such proximity to the jury is demonstrably beneficial? If it is demonstrably beneficial, then challenging it is a worthwhile exercise.

The social sciences have done a great deal of work scientifically assessing the relationship between social distance, perception, and persuasion. Collectively, this work suggests that in our social lives we typically assign more likeability, trustworthiness, and credibility to those who are in closer proximity to us. The term borrowed from the social sciences that is most applicable to the jury trial is “social distance,” a term culled from the work of Anthropologist Edward Hall. In this context “social distance” is not the same as today’s “social distancing.”  Instead, in this context, social distance is the distance between one or more persons who are interacting and measures “from four to seven feet and extends from seven to twelve feet in its far phase.”

An interesting 1994 study authored by Mr. Jeffrey S. Wolfe sought to put Mr. Hall’s theories of social distancing to the test by applying them to what happens in the courtroom.10 The hypothesis of this study was that a lawyer’s proximity to the jury affects juror perception of the lawyer. The report from the study begins with an evaluation of the social science research, which, according to the report, suggests that there is “an undeniable link between distance and the effectiveness of communication.” Certain kinds of communication are most effective when they occur within various “zones.”

As a part of his study, Mr. Wolfe constructed an experiment whereby jurors were presented with a mock case by lawyers moving within and between four different quadrants. The quadrant closest to the jury and the one that comports with “social distance” was quadrant I. The results of the study gave a clear indication that a juror’s perception of a lawyer was impacted by their proximity to the jurors, and jurors consistently selected attorneys located in quadrant I as having a better rapport, being more in control and being more persuasive. 

As described in Wolfe’s study, Hall’s research was expounded upon by many other social scientists, and each concluded similarly. The conclusions drawn from these studies by Mr. Wolfe and others is that the “ability to see and hear the lawyer, and the intensity of the communication, depends upon the lawyer’s location relative to the jury. Therefore, the ability of the lawyer to communicate with the jury depends on the physical relationship between the two—a relationship defined by the litigants’ orientation to and the distance from one another.

From Hall’s research, it seems fair to conclude that location is a significant nonverbal factor that affects the effectiveness of communication in the courtroom. This social science research is also discussed in the 2006 Champion article written by Texas DUI lawyer Mimi Coffey.11 In her article Ms. Coffey concludes that jurors deserve “proximity to the defendant when assessing the citizen’s fate.”

Moving the Court to Allow Defense to Sit Closest to Jury

Aware of the inherent advantages conferred by proximity, creative defense attorneys have challenged the tradition that prosecutors always sit next to the jury. In one published case the defendant’s attorney arrived in the courtroom first and proceeded to sit down and set up on the table closest to the jury box. Thereafter the judge told him to move to the opposite table noting that “the table belonged to the prosecutor by tradition.”12 On appeal from his conviction, the defendant contended that the privilege of this seating arrangement, among other things, “gave the prosecutor control of the courtroom and created an appearance that the prosecutor possessed a privileged status with the court.”13  The court was unpersuaded that the seating arrangement created an unfair trial, but did indicate in footnote four that where there is an objection to a seating a trial judge may “deem it appropriate” to make a more “neutral” decision relative to its modification than to merely rely on tradition to determine who gets to occupy the “best” seat.

Similarly, in a 7th Circuit Case,14 the defense attorney requested a rearrangement of counsel tables so that the defense may sit closest to the jury, or alternatively so that both sides sit equidistant from the jury. The defendant argued in the case that “based upon unchallenged practice, the Government routinely commandeers the table nearest to the jury and thus achieved an unfair psychological advantage.” This motion was denied in part because it was opposed by all other defendants and in part because the government has traditionally been given the option of sitting closest to the jury because it bears the burden of proof.

A related issue of seating arrangements as it relates to confrontation was raised in a 1997 child rape case.15 Here, the prosecution moved for a special seating arrangement for the children victims whereby each child witness testified at a small, child-sized table, which was placed directly in front of the jury box. The defendants remained at the defense table, which was positioned behind and to the side of the child witness, however, the defendants could only see the right ear and a part of the right cheek of the testifying witness. The court in this case found that this seating arrangement violated the defendant’s constitutional right to confront witnesses. The court specifically found that the “witness must give his testimony to the accused’s face, and that did not happen here. Moreover, it is a non sequitur to argue from the proposition that because the witness cannot be forced to look at the accused during his face-to-face testimony, that therefore this aspect of the confrontation right is dispensable. The witness who faces the accused and yet does not look him in the eye when he accuses him may thereby cast doubt on the truth of the accusation.” Not objecting to this seating arrangement my constitute ineffective assistance of counsel.16

In light of all of this information, defense attorneys may wish to consider adding a “Motion Concerning Courtroom Seating” to their arsenal of pretrial motions. While this may not be something to routinely file in every case, it is always a motion worth considering. The biggest pushback will be the tradition informed by the theory that the party with the burden of proof sits closest to the jury. To rebut this, consider changing the phrase to the more appropriate “burden of persuasion.”

Which begs the question; “when does the defense carry this burden?” Any time the defense is arguing to the jury they are ostensibly attempting to persuade them, but it would be impractical and perhaps detrimental to switch sides before every argument. However, in those cases where witnesses are to be called by the defense, it would make sense to switch sides before the defense opens their case. This might be thought of as a fallback position because it is the defendant who is in jeopardy and, despite the court’s views in Barta17, essential fairness requires that defense occupy the favored seat. “By granting the defendant the autonomy to choose his own seat, a judge honors America's historic break with the English practice of confining the defendant in the dock, respects the defendant's right to appear before the jury in his best posture, and provides the jury with relevant, nonverbal evidence from the defendant's confrontation with hostile witnesses.18

by Patrick T. Barone

Patrick T. Barone is the founding partner at Barone Defense Firm. With offices in Birmingham and Grand Rapids, the Firm primarily handles intoxicated driving cases, including those involving death or serious injury. Mr. Barone is an adjunct professor at the Western Michigan University/Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. Mr. Barone is also the author of five books including the two-volume treatise DEFENDING DRINKING DRIVERS, which is considered a seminal work on the topic. Additionally, he has authored more than 100 legal articles on a variety of criminal defense topics. Mr. Barone is a popular speaker, and frequently teaches legal concepts, trial skills and forensic science to others at national and state conferences, workshops and seminars attended by lawyers, judges, doctors, and scientists. He has also provided expert commentary in newspapers, on television and on radio. Mr. Barone is also a Practitioner Applicant for Trainer of Psychodrama and is the only Michigan lawyer so certified. In this capacity he provides trial skills training in conjunction with the Michigan Psychodrama Center.  He can be reached at pbarone@barone.legal.

Note: This article is largely based on content provided as part of Mr. Barone’s 2020 update to his two-volume treatise Defending Drinking Drivers (James Publishing).  All rights reserved.

Endnotes

1. See, e.g., State v. Johnson, 77 Wash. 2d 423, 426, 462 P.2d 933, 935 (1969).
2. See, Nancy S. Marder, Glass Cages in the Dock?: Presenting the Defendant to the Jury,  86 Chi.-Kent L. Rev. 467 (2011).
3. Id.
4. Id.
5. Id.
6. Shepard, Should the Criminal Defendant be Assigned a Seat in the Court? 115 Yale L.J. 2203 (2006).
7. See, Nancy S. Marder, Glass Cages in the Dock?: Presenting the Defendant to the Jury,  86 Chi.-Kent L. Rev. 467 (2011).
8. See United States v. Nava-Salazar, 735 F. Supp. 274, 278 (N.D. Ill. 1990), aff'd in part, 30 F.3d 788 (7th Cir. 1994).
9. Mahon v. Prunty, 107 F.3d 16 (9th Cir. 1997). 
10. See Jeffrey S. Wolfe, The Effect of Location in the Courtroom of Jury Perception of Lawyer Performance, 21 Pepp. L. Rev. 731 (1994).
11. Coffee, Unjust Courtroom Practice: Always Seating the Prosecution Closest to the Jury. 34-MAR Champion 42 (2006).
12. See, United States v. Barta, 888 F.2d 1220, 1226 (8th Cir. 1989).
13. Id.
14. United States v. Nava-Salazar, 735 F. Supp. 274, 278 (N.D. Ill. 1990), aff'd in part, 30 F.3d 788 (7th Cir. 1994) 
15. Com. v. Amirault, 424 Mass. 618, 632, 677 N.E.2d 652, 662 (1997).
16. See, Com. v. Souza, 44 Mass. App. Ct. 238, 239, 689 N.E.2d 1359, 1360 (1998).  
17. United States v. Barta, 888 F.2d 1220, 1226 (8th Cir. 1989)
18. Shepard, Should the Criminal Defendant be Assigned a Seat in the Court? 115 Yale L.J. 2203 (2006).