All sorts of things happen in a Wisconsin courtroom when the jury is in recess. The jury is not supposed to hear any of these things because they are not supposed to be considered by the jury when trying to reach a verdict.
Bench Conferences & Sidebars
During trials, it is common for the lawyers to ask to approach the judge at the bench, or for the judge to summon the lawyers up to the bench. The attorneys and the judge will talk quietly amongst themselves so the jury can’t hear them. Some courtrooms are even equipped with a button the judge can push that will put on white noise so that the jury can’t overhear the discussion up at the bench. During these ‘bench conferences’ or ‘sidebars’ the lawyers typically discuss some evidentiary matter or the application of the rules of evidence to a particular piece of evidence or testimony. That is, the lawyers and the judge are often talking about whether the jury ought to be able to see some piece of evidence or hear a particular topic of testimony.
What a jury sees and hears during a trial is tightly controlled by the rules of evidence. Some evidentiary rulings get made by the judge before trial, and some get made by the judge during the trial. A prosecutor, for example, might want to have a witness tell the jury about something she overheard someone else say. That testimony would almost certainly constitute “hearsay,” which is inadmissible at trial. While there are certain factual situations in which that testimony might be admissible, there are many situations where it would be inadmissible. At a ‘sidebar,’ the prosecutor, the defense attorney, and the judge might be discussing that proposed testimony, with the prosecutor arguing to the judge about why the correct application of the rules of evidence would be to admit the testimony, and the defense attorney arguing the opposite. Trial attorneys are trained in the rules of evidence both in law school and through their professional experience. A strong, comprehensive knowledge of the rules of evidence by an attorney can have a significant impact on the outcome of a trial.
Some judges dislike ‘sidebars’ because they feel they disrupt the trial and alienate or bore the jury. Generally speaking, ‘sidebars’ will be kept short by the judge. If the evidentiary issue is one that will take more time to sort out, the judge might excuse the jury, allowing them to return to the jury room rather than sitting in the jury box while the lawyers argue over the evidentiary issue. At other points in the trial, the lawyers and the judge may be going through jury instructions or the judge may be having a conversation with the defendant about whether he will testify. The jury must not hear any of these matters, because they may be prejudicial to one side or the other, and are not evidence or information that is legally relevant to the ultimate verdict.