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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, September 9, 2008

Your Honor, We Call Your Honor To The Stand: 7th Circuit Finds Admission Of Judge's Testimony Necessitates New Trial

Federal Rule of Evidence 605 states that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point."  The plain language of this Rule explains why I haven't had many opportunities to address it on this blog.  Judges know the rule and recuse themselves from hearing cases in which they know they might have to testify, and it is usually only when a judge refuses to recuse himself that the Rule comes into play.  The Seventh Circuit, however, was based with a different factual scenario in the recent case, United States v. Blanchard, 2008 WL 4119995 (7th Cir. 2008).

In Blanchard, Marshall Blanchard was tried and convicted of one count of manufacturing methamphetamine and one count of unlawful possession of a firearm by a convicted felon.  During pre-trial suppression hearings, Blanchard 's son rendered inconsistent testimony, leading the trial judge to comment, inter alia,:

     "And, of course, now [the prosecutor] has asked him specific questions that lead me to the undeniable conclusion that he has not been credible because he knew that his answers that he was giving were not the same answers that he had given to the grand jury in April."

Later, during trial, the government sought to clarify who had first suggested that the son's testimony may have been untruthful. When the son responded, "The judge and you," the prosecutor was not satisfied, and he asked the son if he remembered what the judge had said to him. Defense counsel promptly objected and requested a sidebar, but the judge rejected that request, stating, "No. If I said something, it will be in the record, and you have a copy of the record. Everybody's been talking about what everybody said. So if you have what I said, it's on the record. It can be put before the jury."  Then, after a second rejected request for a sidebar, the prosecutor read aloud the entirety of the trial judges' suppression-hearing comments indicating his belief that the son was testifying untruthfully.

Furthermore, according to the Seventh Circuit,

     "Adding another wrinkle to this already unusual event, during the prosecutor's reading of the court's suppression-hearing comments, the trial judge characterized his comments, in response to a defense counsel objection and in the presence of the jury, as 'judicial testimony.' The court stated, 'It's my statement. You've got the record. Has he misread it?...It's a direct statement of the Court in a judicial proceeding. You were present. You have a copy of it. Has he misread what I said?...This is reading judicial testimony." 

Based upon this, the Seventh Circuit's decision was easy:  The judge's "testimony" violated Federal Rule of Evidence 605, it was substantially more prejudicial than probative under Federal Rule of Evidence 403, and it was not harmless error, thus necessitating a new trial.  I agree with the Seventh Circuit's opinion and find it hard to believe that there could ever be a case where a judge testifies, and the admission of his testimony is deemed harmless error based upon the fact that, unlike other rules of evidence,  Federal Rule of Evidence 605 does not even require an objection to preserve the issue on appeal.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2008/09/605-us-v-blanch.html

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