Sam Stretton
Samuel C. Stretton ()

Attorneys should not stand when 
jurors enter and exit a courtroom.

I have been in courtrooms where some lawyers stand when jurors come in and out of the room and others don’t. What is the proper rule for standing for jurors?

This question was addressed about 10 or 15 years ago and there is still no true answer. Obviously, every lawyer stands when a judge enters and leaves a courtroom. Every lawyer should stand when a judge addresses them, or when the lawyer is addressing a judge. Sometimes lawyers get sloppy in that regard, but it is extremely important to stand and respect the dignity of the court, which is personified by the judicial officer.

Jurors are different. Jurors are citizens, just like everyone else. Although they have an important task, they do not fill the role of a judicial officer. They are citizen volunteers who are participating in the system.

Therefore, a lawyer should never stand for jurors. They are fellow citizens. The jurors don’t expect it. Clearly, everyone respects the role of the jurors, but that does not require standing when they enter and exit the courtroom.

In fact, to stand for the jurors repeatedly would to some extent trivialize the reason one stands for a judge. The dignity of the court always must be respected and that is why one stands for a judicial officer. But the jurors do not play that role in the court system.

In a democratic society, there are very few times when citizens have to stand up when another individual enters the room, except for instances of social courtesy. The entry into a courtroom of a judicial officer is one of those times. One is not really standing for the person, but rather for the respect of the judicial office. But that rationale does not carry over to jurors.

In fact, traditionally lawyers did not stand for jurors. It has only been a recent innovation by certain judges. Some judges, particularly in federal court, will require lawyers to stand when jurors come in. It is not worth arguing with the judge since the judge is set in his or her way in that regard. But there is no basis for doing so and it goes against democratic principles to stand for fellow citizens, even though they are playing an important role as members of an empaneled jury.

Some commentators believe standing when jurors come in and out of a courtroom is not always well received. Some jurors perceive this as a way to obtain favor. Many district attorney’s offices have their assistant district attorneys stand when jurors come in and out of a courtroom. Sometimes it does put the defense lawyer at a disadvantage unless he or she also stands. Every lawyer has to make his or her own decision in that regard. But the practice of standing for jurors has no traditional or historical basis.

At some point, there ought to be a reevaluation of the rules in the courtroom. Standing for jurors is not something that should be done routinely, and the best practice would be the traditional one, where lawyers do not stand for jurors and reserve that right only for a judicial officer.

Subpoenas can’t be used to bring 
a witness into an attorney’s office.

Can I issue a subpoena in a criminal case to compel a witness to come to my office?

No. Unlike civil cases, there is no right for a lawyer or for the district attorney to subpoena a witness or documents to the lawyer or the district attorney’s office. To do so would be an abuse of process.

In criminal law, there are no depositions unless they are ordered specifically by the judge. As a result, subpoenas can only be issued to witnesses for court appearances. No lawyer has the right to take a court subpoena and compel a witness to come to the lawyer’s private office for the purpose of pretrial investigation or preparation.

Unfortunately, at least in years past, some assistant district attorneys did not always understand that distinction and would utilize subpoenas to get recalcitrant witnesses into their offices. Although understanding the need at times to have some authority to compel a witness to come forward, that is just not allowed or acceptable. The subpoena has to be to a courtroom and a court date, not to an office.

Thirty years ago, an attorney who did issue such a subpoena received an informal admonition from the Office of Disciplinary Counsel. After that, the practice stopped for a period of time.

Every lawyer must recognize the power of a subpoena. It is one of the few times a lawyer can compel a fellow citizen to disrupt his or her normal activities and to appear someplace. Using a subpoena is a very important, powerful procedure that should be done only in the most appropriate fashion.

It is entirely inappropriate to use criminal subpoenas for private investigation in criminal cases, whether one is a district attorney or a private lawyer. Continued abuse of that subpoena power could result in sanctions by a judicial officer if the matter were brought to a judge’s attention, and could also result in potentially severe discipline. The contents of a criminal subpoena references bringing someone into a criminal courthouse to a specific courtroom, not to a law office.

Subpoenas are not a tool to aid a lawyer’s investigation in criminal matters. Subpoenas can only be used to compel witnesses to come forward for specific court dates and times. In a criminal case, a lawyer can never use a criminal subpoena for the purpose of bringing a witness into his or her office, no matter how good the intentions of the lawyer are.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.