Friday, November 20, 2009
Judge Advocate?: Court Of Appeals Of Ohio Finds Judge Didn't Abuse Discretion By Asking 89 Questions To Witness In Domestic Violence Trial
Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Similarly, Ohio Rule of Evidence 614(B) provides that "[t]he court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." But when does a court go too far? In the words of the Ohio rule, when does the judge overstep his power and transform from an impartial interrogator into a partisan advocate? That was the question that the Court of Appeals of Ohio, Eighth District had to answer in its recent opinion in State v Redon, 2009 WL 3765971 (Ohio App. 8 Dist. 2009). And I am not entirely satisfied with its answer.
In Redon, Kenneth Redon appealed from his convictions for kidnapping and domestic violence based upon acts that he allegedly committed against his wife, Shawnta Redon. According to the prosecution, Keith
arrived home in the early morning hours of May 12, 2008 after spending time visiting his daughter at his daughter's mother's house. At approximately 2:30 in the morning, [Keith] woke his wife, Shawnta Redon, by trying to kiss her. After Mrs. Redon rebuffed [Keith]'s advances, an argument ensued involving the location of the television remote control. In the course of this argument, Mrs. Redon was trying to locate her cell phone using the house telephone line. [Keith] snatched the phone from Mrs. Redon and hit her several times, with blows landing on her face and arms.
At Keith's trial,
Mrs. Redon testified that she was hit at least once in the face and several times on her arms as she raised them to protect her head. Photographs taken by the Bedford police department were introduced at trial, which showed injuries to Mrs. Redon's arm. She further testified that the argument calmed down, and she and [Keith] sat on the couch for a few minutes. Then Mrs. Redon went upstairs to the bathroom to survey the damage done by [Keith]. The court, while questioning Mrs. Redon about inconsistences in her prior statement to the Bedford police the next day, elicited testimony that she was in the bathroom for a few hours, during which time [Keith] was standing at the door preventing her from leaving. [Keith]'s car was also blocking Mrs. Redon's car, further preventing her from leaving the premises. [Keith] finally left the home to deliver newspapers. Mrs. Redon then called her mother and packed a bag, planning to stay at her mother's house. Upon finding her car blocked in, she called [Keith], who arrived an hour later to move his car. Mrs. Redon was also unable to locate her keys, which were conveniently found by [Keith] upon arriving at the home to move his car. Mrs. Redon left the home and reported the incident to the Bedford police later that day. (emphasis added).
In all, the trial judge asked Mrs. Redon 89 questions. After he was convicted, Keith appealed, claiming, inter alia, that the trial judge abused his discretion in engaging in this rigorous interrogation. According to the Court of Appeals, the issue was governed by Ohio Rule of Evidence 614(B). The court held that, under this Rule,
"A judge abuses his discretion when he plays the part of an advocate, but the rule is not so restrictive that [a] judge is not permitted to participate in a search for the truth."...A trial court "may interrogate witnesses, in an impartial manner, whether called by itself or by a party."
For the court, it was important that Keith was subjected to a bench trial, not a jury trial. The court noted that
In the case at bar, a bench trial was conducted where “a trial judge is ordinarily accorded greater flexibility” in the questioning of witnesses....This is because “when there is no jury, there is no one to be prejudicially influenced by the judge's demeanor."
Of course, a party such as Keith can still be prejudiced by a judge's questions, but the court found that the trial judge's 89 questions were not sufficiently prejudicial. According to the court,
While 89 questions is a substantial number, the majority were to clear up contradictions and ambiguities between Mrs. Redon's testimony in court and her prior statement to the police. [Keith]'s trial counsel introduced those inconsistencies on cross-examination. The court was simply trying to arrive at the truth when confronted with differing versions of events and a recalcitrant witness. As the trial court noted, victims of domestic violence are often reticent to testify at trial against their abuser. The court took great pains to go over Mrs. Redon's prior statement and ask her the same questions that were posed by police officers. The court determined that the testimony of Mrs. Redon was consistent with her prior statement, even if Mrs. Redon was hesitant to tell the full extent of the events when first questioned by the prosecution.
I have no problem with any of the above analysis. But I do have a problem with the last part of the court's analysis. The court concluded by noting that
In an effort to prove prejudice, [Keith] point[ed] to testimony drawn out by the court that was not adduced on direct examination by the prosecution. This should be expected because the testimony that was drawn out was in regard to the prior statement, which the prosecution was forbidden to use on direct examination. A party cannot attack the credibility of its own witness absent a showing of surprise and damage to its case....Here, there was no adverse testimony by Mrs. Redon that would amount to surprise. However, on cross-examination, [Keith] used the prior inconsistent statement to attack Mrs. Redon's veracity. This opened the door for the court to question Mrs. Redon about her prior statement and to try to determine why there were differences in her prior statement and her court room testimony and which of those was the truth.
This makes it seem like the judge not only could, but needed to, step in and question Mrs. Redon to clear up inconsistencies in her statements because the prosecution could not have done so; however, once defense counsel impeached Mrs. Redon through her prior inconsistent statement on cross-examination, the prosecution could easily have questioned her to clear up inconsistencies in her statements during redirect examination. I'm not sure how big of a role this part of the court's reasoning played in its holding, but if it played a large role, the court's ruling was likely erroneous. Of course, without seeing the transcript of the judge's questions, it is difficult to reach any definitive conclusion.