In their 1977 book, Felony Justice: An Organizational Analysis of Criminal Courts, James Eisenstein and Herbert Jacob coined the term “courtroom workgroup” (Eisentstein & Jacob, 1977). They specifically referred to the cooperative working relationship between prosecutors, defense attorneys, and judges in working together to efficiently resolve cases in the criminal courts. This chapter generally uses courtroom workgroups to include all the individuals working in criminal courts—judges, attorneys, and other court staff. In figure 7.10, the judge is shown sitting on an elevated platform. This physical elevation helps to illustrate that the judge is the most prestigious member of the courtroom workgroup. You might think that they are the most powerful member, but that role really belongs to the prosecutor, which we will examine next (Davis, 2005).

In the criminal justice system, there are two main stages: the accusatory phase, which is like the “getting ready for trial” phase, and the adjudicatory phase, which is the trial itself. During these phases, several people work together:

• The prosecutor is the person who brings charges against someone and represents the state during the trial. They also negotiate with the defendant’s lawyer before the trial, and they talk to the judge during the trial and at the sentencing.
• The defense attorney is the lawyer who represents the person accused of a crime. They start helping the person after charges are filed and keep helping them until the end of the trial, including during the sentencing if the person is found guilty. They might also help with an appeal if the person is found guilty.
• The judge is the person in charge of the trial. They have several people helping them, like clerks and other court staff. The judge listens to both sides during the trial and makes sure that everything is done fairly.

Prosecutors, defense attorneys, and judges all have different jobs, but they all care about making sure the trial is fair and follows the law. They all went to law school and passed a test to become lawyers. They also follow rules about how they should behave, called “professional responsibility” rules.

Trial Judges

Trial court judges are responsible for presiding over pretrial, trial, and sentencing hearings, as well as probation and parole revocation hearings. They issue search and arrest warrants, set bail or authorize release, sentence offenders, engage in presentence conferences with attorneys, and work with court clerks, bailiffs, jail staff, and others. Trial judges have considerable, but not unlimited, discretion. In addition to the ethical and disciplinary rules governing all attorneys in the state, trial judges are subject to judicial codes of conduct. Judges are bound by the applicable rules of law when deciding cases and writing their legal opinions. Some rules governing judges are flexible guidelines, while others are precise requirements.

During the pretrial phase, judges make rulings on the motions brought before the court. These rulings include motions or requests to exclude certain evidence, to require important information, and to change the venue or location of the trial. Because most cases are resolved before trial through plea-bargaining, one important judicial function is taking the defendant’s guilty plea.

If a defendant chooses to give up (or waive) their right to a trial by jury, they receive a bench trial. In a bench trial, the judge hears and decides the case as the sole “trier of facts.” Like jurors in a jury trial, the judge has considerable discretion or authority when deciding what facts were proven (or not) by the parties. The judge also decides the credibility of witnesses. If the defendant chooses a jury trial instead, the jury decides what the facts are. In either a bench or jury trial, the trial judge rules on whether any of the evidence—that is, whether a jury is entitled to hear certain testimony or look at physical evidence. The judge also decides whether witnesses are competent, whether privileges exist, whether witnesses qualify as experts, whether jurors will be excused from jury service, and so forth. At the end of the jury trial, the judge gives a set of jury instructions to the jurors, which informs them on the law that applies to the case they are deciding.

If the defendant is convicted, then the judge will impose the sentence. Except for death penalty cases, jurors are generally not involved with sentencing the defendant. Judges have perhaps the broadest discretion in their role of imposing sentences. However, with more states enacting mandatory minimums and sentence guidelines, judicial discretion has been severely curtailed.

Trial Judge Selection and Qualifications

The sole qualification to be a judge in most jurisdictions is a degree from a law school and membership in the state’s bar association. State procedures in selecting judges vary tremendously, but the main differences are whether judges are elected, appointed, or selected based on merit. Four primary methods are used to select judges in the United States:

1. By appointment, with or without confirmation by another agency.
2. By partisan political election.
3. By nonpartisan election.
4. By a combination of nomination by a commission, appointment, and periodic reelection (the Missouri Plan).

The length of time a judge will “sit,” called a term in office or tenure, varies greatly, generally from four to sixteen years. Frequently, the term for a trial judge is less than that of appellate judges. At the appellate level, six years is the shortest term. A few states have lifetime tenure for judges.

Judicial Clerk, Law Clerk, and Judicial Assistants

Generally, judges have one or two main assistants. These individuals are known as judicial clerks, clerks of court, law clerks, or judicial assistants. There may be several court clerks who interact each day with all the judges in the courthouse. The clerk of court works directly with the trial judge and is responsible for court records and paperwork both before and after the trial. Usually, each judge has their own clerk. The clerk prepares all case files that a judge will need for the day. During hearings and the trial, these clerks record and mark physical evidence introduced in the trial, swear in the witnesses, administer the oath to the witness, take notes cataloging the recordings, and so forth. In some jurisdictions, law clerks are lawyers who have just completed law school and may have already passed the bar exam. In other jurisdictions, the law clerks are not legally trained but may have specialized paralegal or legal assistant training.

Bailiffs

Bailiffs are the court staff responsible for courtroom security. Bailiffs are often local sheriff deputies or other law enforcement officers. But they can also be civilians hired by the court. Sometimes, bailiffs can be volunteers. Bailiffs work under the supervision of the trial court administrator. During court proceedings, bailiffs or clerks call the session to order and announce the judge’s entry. They ensure that public spectators remain orderly, keep out witnesses who might testify later, and attend to the jurors. As courtroom security becomes a bigger concern, law enforcement officers are increasingly used as bailiffs. They are responsible for the safety of the court personnel, spectators, witnesses, and parties. In some communities, law enforcement bailiffs may transport in-custody defendants between the jail and the courthouse. In most jurisdictions today, bailiffs screen people for weapons and require them to silence cell phones before entering the courtroom.

Jury Clerk

The jury clerk sends out jury summons to potential jurors and works with jurors’ requests for postponements of jury service. They coordinate with the scheduling clerk to ensure enough potential jurors show up at the courthouse for trials (figure 7.11). They also schedule grand jurors and arrange payment to jurors for their service. In some cases, the judge might decide to sequestrate the jury, meaning that the jury must be isolated to avoid any outside influence. During jury sequestrations, the clerks arrange lodging and meals for jurors.

Court Clerks and Staff

Court structure varies by courthouse, but frequently, court staff is divided into units. For example, staff may be assigned to work in the criminal unit, the civil unit, the traffic unit, the small claims unit, the juvenile unit, the family unit, or the probate unit. Smaller communities may have just a few court clerks who “do it all.” With the trend towards specialized courts (drug, mental health, domestic violence, and veteran courts), staff may specialize in and/or rotate in and out of the various units. Court staff is expected to know local court rules, protocols, statutes, and administrative rules. These rules involve filing processes, filing fees, filing timelines, accounting, record maintenance, and a knowledge of general office established practices. Court staff order supplies, master office machinery, and follow safety protocols. Due to the COVID-19 pandemic, many courts transitioned to electronic filing of all documents, usually managed through a centralized state court system. Court staff work with the filing software, keep up with new filings, and archive past court documents.

Scheduling Clerk

The scheduling clerk, or docketing clerk, sets all hearings and trials on the court docket. The scheduling clerk notes the anticipated duration of trials, speedy trial constraints, statutory and local court rules, time frames, and more. Effective scheduling clerks contribute to the overall efficiency of the legal process. Part of scheduling is keeping track of law enforcement officers and defense attorneys’ scheduled vacations. The scheduling clerk must track the judges’ calendars, scheduled vacation time and training days, and desk time for resolving cases they have taken under advisement.

Licenses and Attributions for Courtroom Players: Judges and Court Staff

Open Content, Shared Previously

“Courtroom Players: Judges and Court Staff” is adapted from “7.8. Courtroom Players: Judges and Court Staff” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee, licensed CC BY-NC-SA 4.0, include editing for brevity and clarity.

Figure 7.10. Judge Edward Chen by United States Courts is in the Public Domain.

Figure 7.11. “Jury” by CALI is licensed under CC BY-SA 4.0.