During a trial, the judge may call the lawyers to the bench, or the lawyers may request to approach the bench.
The bench is the large, raised desk at the front of a courtroom behind which the judge sits. When a lawyer asks to “approach the bench,” he or she is asking the judge’s permission to literally step closer to the desk to speak with the judge outside the hearing of the jury.
Typically, when attorneys ask to approach the bench they want to discuss a point of the case. Most often, these discussions concern matters of law or procedure. These discussions are purposefully held out of the jury’s hearing to avoid confusing the issues or influencing the jurors. The jury must decide a case on facts alone, and not the questions of law and procedure. The New Jersey Courts specifically remind jurors that they “should not attempt to draw any conclusions about what has been said out of their hearing.” The New York State Unified Court System reminds jurors that they should “use only the evidence [they] are given.”
Attorneys approach the bench to avoid the inconvenience and disruption of sending the jury from the courtroom. However, if the discussion is going to take a long time then the jury may be excused by the judge.
The CEB, a program of the University of California that is cosponsored by the State Bar of California, lists the following situations as examples of when bench conferences are appropriate:
- The proponent asks a question, the opponent objects, and the proponent needs to explain factually why the evidence is admissible.
- The opponent sees that an objectionable question is coming and objects before it’s asked; the opponent wants to approach the bench to explain the objection.
- The proponent knows that his or her next question may be objectionable and that a curative instruction won’t suffice.
Purposes of bench conferences can also include explaining the order of witnesses, a technical problem or the need to take a recess to go to the restroom.
These private discussions between the judge and attorneys are commonly referred to as side bar discussions.