First of all, sometimes the “this is how we do things” line is just a rhetorical piece of crap. See the C&F post on “we are all laughing at you.” here.

Secondly, not all “practices” really are deferring to the prosecutor (especially in courts where there are more player than just the prosecutor and the defense – i.e. police have wide charging discretion), but are fairly pre-defendant. They have been worked out over time as a means to accomplish some policy without interfering with some political goals. For example, they often emerge as a way around certain mandatory minimums, over-blow sex offender registration requirements, etc. Sometimes they are a way to reduce sentences without appearing to do so.

In other courts they are codified into local rules based upon local situations (e.g. language issues, circuit riding, etc.), the nature of the buildings. (I.e. are bench conferences held before the bench, in a little room, etc. etc.)

But, it would be nice to see more academic discussion of local practices, and their reasons.

If someone calls a PD’s supervisor, probably won’t make much difference. So, in most cases it is futile.[/quote]
Yeah, I get your point, but this isn’t like that at all. It is truly a product of the balance that prosecutors and defense lawyers have in a particular courthouse.

These are arbitrary “rules” that have evolved not based on any jursidictional provisions (of which there are none), but based on the routines in that particular court that have persisted due to years of giving in by the defense bar.

I’m not talking about process either (like pre-trial conferences or sidebars or things like that) – I’m talking about substantive stuff – like in some courts, they just don’t file motions or probation is always assumed to be a part of the sentence regardless of whether the defendant is advised of it on the record.

First of all, sometimes the “this is how we do things” line is just a rhetorical piece of crap. See the C&F post on “we are all laughing at you.” here.

Secondly, not all “practices” really are deferring to the prosecutor (especially in courts where there are more player than just the prosecutor and the defense – i.e. police have wide charging discretion), but are fairly pre-defendant. They have been worked out over time as a means to accomplish some policy without interfering with some political goals. For example, they often emerge as a way around certain mandatory minimums, over-blow sex offender registration requirements, etc. Sometimes they are a way to reduce sentences without appearing to do so.

In other courts they are codified into local rules based upon local situations (e.g. language issues, circuit riding, etc.), the nature of the buildings. (I.e. are bench conferences held before the bench, in a little room, etc. etc.)

But, it would be nice to see more academic discussion of local practices, and their reasons.

If someone calls a PD’s supervisor, probably won’t make much difference. So, in most cases it is futile.