Commercial Litigation and Arbitration

No Right to Sidebars during Presentation of Testimony at Trial

From U.S. v. Aleynikov, 2011 U.S. Dist. LEXIS 33345 (S.D.N.Y. Mar. 16, 2011):


Aleynikov contends that the Court's denial of his three requests for sidebars prejudiced the defense because it made it appear to the jury that Aleynikov was acting improperly in requesting a sidebar. Aleynikov has not shown that he suffered any prejudice at trial from the inability to participate in a sidebar.

The Court explained its policy on sidebars at a pretrial conference on November 19. The Court observed,

I don't encourage side bars. This may be a case that will test that rule. But generally speaking, I expect you to anticipate issues that are going to arise and to talk about them with each other, evidentiary issues, legal issues, things that need discussion and exploration with the Court. And to do it outside the jury's time so that they're hearing testimony from 9:30 to 5.

To provide ample opportunity for legal argument outside the presence of the jury, the Court and the parties met at the beginning of each trial day for half an hour before the jury began to hear evidence at 9:30 a.m., as well as during breaks in the testimony, and at the end of the trial day. The policy against sidebars applied equally to both parties and was the Court's customary practice.

Although aware of the Court's practice, Aleynikov requested a sidebar three times during the course of the trial; the requests were denied. Aleynikov requested a sidebar during his cross examination of Yanagisawa, and during the direct testimony of both Schlesinger and Special Agent Candace Hunter. Aleynikov did not offer any explanation at trial and has offered none now of how the absence of a sidebar on those three occasions interfered with the proper presentation of trial testimony. As already noted, there was ample opportunity during the trial to discuss evidentiary and legal issues without unnecessarily disrupting the presentation of the evidence to the jury.

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