EvidenceProf Blog

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

Monday, October 12, 2009

Judge As Super Witness?: Supreme Court Of Tennesse Grapples With Whether And When Judges Should Be Able To Testify

Like its federal counterpart, Tennessee Rule of Evidence 605 provides that "[t]he judge or chancellor presiding at the trial may not testify in that trial. No objection need be made in order to preserve the point." But what happens when the prosecution wants to have the judicial commissioner who made the initial determination of probable cause testify at a defendant's trial? That was the problem recently addressed by the Supreme Court of Tennessee in State v. Nash, 2009 WL 3191550 (Tenn. 2009).

In Nash, Scott Nash was arrested based upon suspicion that he was driving under the influence.

At the police department, Judicial Commissioner Harold Sutton observed Mr. Nash “passed out” in the back of the patrol car. Although Commissioner Sutton normally administered sobriety tests, he testified that it was impossible to administer such tests under these circumstances. After viewing a videotape of the traffic stop and arrest, Commissioner Sutton instructed Officer Sesler to transport Mr. Nash to the hospital emergency room “because of his level of intoxication.” At the hospital, Mr. Nash admitted to drinking “a pint of alcohol” and blood tests showed his blood alcohol content (BAC) was .249%.

Nash was subsequently charged with driving while under the influence of an intoxicant, driving while having an alcohol concentration of greater than .10%, and driving on a revoked license. At trial, the prosecution called, among other witnesses, Commissioner Sutton to testify as a fact witness. Following cross-examination of Commissioner Sutton, Nash moved for a mistrial on the grounds that it was improper for Commissioner Sutton, as a member of the judiciary, to testify in a criminal case in which he had made the initial determination of probable cause. The trial court denied the motion, and, after Nash was convicted, he appealed on this and other grounds.

That appeal subsequently reached the Supreme Court of Tennessee, which first noted that the issue was not governed by Tennessee Rule of Evidence 605 because Commissioner Sutton was not presiding over Nash's trial. The court also indicated that no Canon of the Tennessee Code of Judicial Conduct explicitly precluded Commissioner Sutton's testimony. Instead, the Tennessee Supremes noted that Canon 2B of the Tennessee Code of Judicial Conduct merely provides that "[a] judge shall not testify voluntarily as a character witness," with the accompanying Comment stating that

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be places in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.

That said, the court acknowledged that

[c]ourts in other jurisdictions, when presented with similar issues, have expressed concerns that judicial testimony could potentially undermine judicial independence and create an appearance of impropriety....Similarly, courts have been disturbed by the possibility that juries would view judges as “super witnesses,” which would allow testifying judges to inadvertently exert undue influence over the proceedings.

The court thus held that

[i]n light of these valid concerns, judicial testimony should be used with restraint and caution. While we do not expressly approve of the State's use of the judicial commissioner as a fact witness in the present case, neither the Rules of Evidence nor the Code of Judicial Conduct requires his disqualification under these circumstances, and we do not find that the trial court abused its discretion in allowing Commissioner Sutton's testimony based on the facts of this case.



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