During the hustle and bustle of trial, a lawyer must focus on a variety of things—jury selection, motions in limine, instructions, trial briefs and other pleadings, exhibits, and of course, examination of witnesses. Practitioners would be well-served, however, not to lose sight of non-testimonial events that can have a powerful influence on the outcome, sometimes with result-changing-consequences on appeal.

Two recent appellate decisions provide stark illustrations. The first is People v. Hernandez, No. A119501, 2009 Daily Jl. DAR 10243 (Cal. App. July 10, 2009), in which the defendant was convicted of assault with force likely to produce great bodily injury. On the fourth day of what would be a five-day trial, the defendant took the witness stand to testify in his own defense. An armed and uniformed bailiff accompanied the defendant to the stand and stood behind him while he testified.

Before the defendant re-took the stand the next morning, defense counsel objected to the previous day’s procedure, asserting that the bailiff’s action was “inappropriate,” unprecedented, and akin to having her client “shackled in front of the jury.” Disagreeing, the trial judge stated that it was her practice, for security reasons, to permit the bailiff to stand behind defendants while they testified, noting that that’s “what happens in every case that I’ve ever tried.”

Defense counsel then asked the court to make an “individualized finding” concerning the risk her client posed that would have warranted utilizing the court’s procedure the day before since, as counsel noted, “there had been no allegation [the defendant] had been violent in custody” or in prior court proceedings. The trial court declined, stated that it had discretion on what procedure to use, and observed that the defendant deserved “what every defendant deserves, and that is security for himself and for all the rest of us.”

The court also refused defense counsel’s proffered instruction that would have directed the jury not to consider as evidence that her client was “in custody.” Instead, the court admonished counsel for “trying to make [the jury] feel sorry for [the defendant]” and stated that because the defendant was neither “shackled” nor “restrained,” the instruction was unnecessary. The jury then returned a guilty verdict and the court sentenced defendant to state prison.

On appeal, Hernandez claimed error in the trial court’s procedure and the refused instruction. A divided panel of Division Two of the First Appellate District agreed and reversed.

The majority found error in the trial court’s refusal to inquire into whether Hernandez in fact posed a security risk and held the refusal to instruct exacerbated the error. The majority noted that, although trial courts have discretion to maintain courtroom security, its procedures may not be “so inherently prejudicial as to deny the defendant the constitutional right to a fair trial.” Because the procedure here “carried a grave risk of prejudice” by communicating that the defendant was “potentially dangerous or untrustworthy,” the trial court “could not exercise its discretion rationally without considering the actual need for the measure.”

The incident in Hernandez involved no testimony and no written submissions. Thus, without defense counsel’s objection and request for an instruction, the Court of Appeal would have never known about the trial court’s procedure. Hernandez thus underscores the importance of being aware of potentially prejudicial non-testimonial events and of ensuring a record is made to permit appellate review. After all, in this post-O.J. era, few if any trial proceedings are filmed in California, so in assessing error, appellate judges must rely on whatever record is made of the trial court proceedings. This makes it imperative to make sure the record reflects any potentially problematic non-verbal conduct that occurs in the courtroom.

A second case, Gdowski v. Gdowski, 175 Cal. App. 4th 128 (2009), shows that a timely and focused objection to non-testimonial events may even nip potentially prejudicial error in the bud. In Gdowski, eighty-three-year-old Michael Gdowski sought a protective order under the Elder Abuse Act from his adult daughter, Diana Gdowski, on the grounds that Diana had assaulted him and threaten to kidnap Frances Gdowski (Michael’s wife and Diana’s mother), who needed medical care.

The matter eventually proceeded to an evidentiary hearing, at which both Michael and Diana testified, with Michael maintaining his abuse claims and Diana denying them. Although both parties testified they had sought to be appointed as Frances’s conservator, on crossexamination, Michael admitted having reported Diana’s alleged abuse only after seeking the appointment.

Acknowledging that the case was a “close call” that came down to “one person’s word against the other,” the trial court stated it was influenced by Diana’s counsel’s “aggressive,” “confrontational,” and “abusive” cross-examination of Michael and had assumed that the crossexamination was consistent with Diana’s “desire to treat her father in such a fashion.” The court stated that Diana should have stopped her counsel’s disrespectful cross-examination by “‘tap[ping] [counsel] on the shoulder’” and saying “this is my father you are speaking to.” In the final analysis, the court said, Diana’s failure to rein in her counsel “was the straw that made the difference in tipping the scale” as to whether Diana had treated her father abusively, and thus issued Michael’s requested protective order. Surprisingly, at no point had Michael’s counsel objected to Diana’s counsel’s conduct.

On appeal, Diana argued that the trial court erred in relying on her counsel’s behavior and on Diana’s failure to control her counsel rather than on the evidence. Agreeing, the Court of Appeal could not “close [its] eyes to, and disregard, the trial court’s express acknowledgment that the attorney’s questioning and Diana’s failure to intervene” were determinative. It noted that Michael had the burden of establishing the need for the protective order, but that because the trial court had found the evidence “evenly balanced” in finding counsel’s conduct “tipp[ed] the scale,” Michael had not carried his burden. After all, the Court noted, statements by attorneys are not evidence; so, too, “Diana’s counsel’s questions of Michael could not have been evidence.” Moreover, the Court noted, Diana had no obligation to correct her counsel’s behavior and to hold otherwise would contradict settled “principles of the attorney-client relationship.”

Fortunately for Diana, the trial court itself had made the necessary record of counsel’s conduct and then relied on that conduct as the basis for its order. Because counsel never objected, but for the court’s express reliance on counsel’s conduct as having tipped the scales, the Court of Appeal would have been unaware of that conduct and, more significantly, of the role that conduct had in the trial court’s decision. Without the trial court’s reversal-producing statements, the presumption of correctness afforded the trial court’s order would therefore have doomed Diana’s appeal.

A more acute awareness of the events by trial counsel in Gdowski could perhaps even changed the outcome and obviated an appeal. Michael’s counsel could have objected to Diana’s counsel’s aggressive cross-examination, which might have refocused the trial court, placing it on the proper track to consider the evidence rather than counsel’s conduct. Also, after receiving the trial court’s ruling, Diana’s counsel could have moved for appropriate posttrial relief obviating the need to undo the ruling a year or so later on appeal.

Although Hernandez and Gdowski are very different, they demonstrate the need for counsel to remain attuned to non-testimonial events that occur in the courtroom and to make appropriate objections or take other record-preserving actions to avoid prejudice to one’s client. A contemporaneous objection can often permit a problem to be aired—and cured—immediately rather than gambling on an iffy appeal to do so years later. As both cases show, moreover, such non-testimonial events can be just as important as a “smoking gun” piece of evidence that was excluded or admitted or a dispositive case that was misapplied or never cited. Making a record of any such “out of order” events at trial is essential to success on appeal.

A version of this article appeared in the July 30, 2009 edition of the San Francisco Daily Journal