In the United States, in general criminal trial courtrooms, I have always seen the defense positioned furthest from the jury and the witness stand. However, I gather that not only is there no law or rule prescribing this arrangement, but also there are some courts where it is not the case.

I imagine that a counselor for a defendant may have a number of reasons why he would prefer to seat himself and his client closest to the jury, or closest to the witness stand. For example, the counselor may want to get a more acute read on the reactions of jurors or emotions of witnesses. Or he may consider his client to have an attractive or sympathetic demeanor. (Conversely, he may want to keep an unsympathetic client as far from the jury's eyes as possible.)

In criminal trials, does the defense ever (or always) have the option of choosing its position in the courtroom? If not, is there jurisprudence that explains why this isn't considered an unnecessary handicap to the defense?

1 Answer 1


There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof."

It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist.

Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table.

In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous.

So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage.

  • 1
    That said, the witness stand is always between the Jury and the Judge as the witness is supposed to answer the question as if they were questioned by the Trier of Fact (usually the Jury, though occasionally the Judge) rather than the attorney who actually asked the question. This is more of a show thing, so I don't know if it's actually law, and I'm very much aware that at Jury Trials, most attorneys will stand by the Jury Box to force the witness to answer in the direction of the Jury.
    – hszmv
    Nov 1, 2018 at 20:21

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