EvidenceProf Blog

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

Sunday, October 18, 2009

Judging Judges: Third Circuit Denies Appeal Based Upon Judicial Comment And Questioning

A defendant is on trial for being a felon in possession of a firearm. While a witness for the prosecution is on the stand, the prosecution engages in direct and redirect examinations, and defense counsel engages in cross and re-cross examinations. During defense counsel's questioning of the witness, the judge makes a negative comment regarding the interrogation. Moreover, at the end of re-cross, the judge is not completely satisfied with these four examinations and decides to step in and ask the witness a few more questions, eliciting testimony that incriminates the defendant. After the defendant is convicted, he appeals, claiming that the judge should not have asked these questions because he became, in effect, a second prosecutor. Should the court grant the defendant a new trial? According to the Third Circuit in its recent opinion in United States v. Holder, 2009 3287534 (3rd Cir. 2009), the answer is "no," as long as the judge did not overstep the bounds of prudential judicial conduct.

In Holder, the facts were as listed above, with Alfonso Holder being the defendant. The gun ostensibly recovered from Holder was a.40 caliber semiautomatic pistol, but the police apparently incorrectly described the gun as a 9mm on the property receipt. At Holder's trial, while defense counsel was cross-examining one of the officers who recovered the gun regarding the mistaken identification of the firearm, the trial judge commented to defense counsel, “I think you're confusing what it is that caused the problem here." Unfortunately, the Third Circuit's opinion doesn't provide any details regarding defense counsel's line of questioning. It is also unfortunate that the Third Circuit's opinion merely tells us that, after re-cross, the trial judge asked the officer "a short series of questions regarding the incorrect description of the .40 caliber gun," but does not tell us the substance of those questions.

What we do know is that Holder appealed his conviction based upon these two actions of the judge. The court's easier ruling was on the issue of judicial interrogation. The court noted that under Federal Rule of Evidence 614(b), "[t]he court may interrogate witnesses, whether called by itself or by a party." Therefore, the Third Circuit found no problem with the trial judge's questions because it was

not apparent that the District Court's short succession of questions overstepped the bounds of prudent judicial conduct....Moreover, because Holder "fail[ed] to point out any facts which convince[d] th[e] Court that there was actual bias on the part of the trial judge," any error, to the extent one exists, [wa]s harmless.  

The court's more difficult ruling was on the issue of judicial comment. According to the court,

Since trial counsel never lodged a contemporaneous objection to the interruption, we review this particular complaint under the plain error standard....Therefore, the viability of this argument depends on whether the error is "'grievous', or 'so fundamental in nature as to deprive a party of fundamental justice', or otherwise constitut[e] a 'manifest miscarriage of justice.'"...Here, an examination of the record shows that no plain error was committed; the judge's brief comment to defense counsel was not so prejudicial as to deprive Holder of a fair trial. To the contrary, defense counsel was immediately permitted to proceed with her examination of the officer. 

Now, as I said before, the Third Circuit's opinion doesn't tell us what questions by defense counsel led to this comment by the judge, so I can't evaluate the prejudice caused by the trial judge's comment. What I can say, however, is that I am not buying the Third Circuit's explanation that the judge's comment was insufficiently prejudicial because defense counsel was allowed to proceed with her examination of the officer. Basically, defense counsel was interrogating the officer, the judge commented that defense counsel was confusing the issue, and then defense counsel was allowed to continue to pursue this line of questioning. It seems to me that a juror hearing the judge's comment would discredit this line of questioning based upon the judge's comment but would not have done so in the absence of the comment (of course, maybe the line of questioning was irrelevant, meaning that the jury would have disregarded it anyway, but, again, the court's opinion doesn't provide us with this information).

My final point is that the Third Circuit should not have required Holder to prove plain error. Under Federal Rule of Evidence 605, judges are not allowed to testify, and an objection is not required to preserve the issue for appeal. Why? Well, according to the Advisory Committee Note to Rule 605,

To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

Now, this Rule only covers judicial testimony and not judicial comment, but if we look at the logic in the Advisory Committee Note, why should the two be treated differently? If defense counsel objected to the judge's comment, wouldn't she have worried that the judge would feel that his integrity was attacked by her? Does any reader have an explanation for treating the two situations differently?



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