Thursday, March 25, 2010
The 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.
So, what happens when a judge makes a statement of common knowledge during a trial? Is this simply the judge taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) or is the judge improperly testifying in violation of Federal Rule of Evidence 605? According to the recent opinion of the Second Circuit in United States v. Bari, such a statement is simply the judge taking judicial notice.
In Bari, Bari pleaded guilty to, and was convicted of, one count of bank robbery and sentenced principally to 188 months' imprisonment to be followed by five years' supervised release. During Bari's supervised release, "the United States Probation Office submitted to the District Court an Amended Request for Court Action alleging that Bari had violated the terms of his supervised release."
The U.S. Probation Office claimed that Bari violated the terms of his supervised release by, inter alia, robbing a bank, and the judge hearing the action, Judge Chin,
considered evidence that the bank's surveillance footage showed that the robber wore a yellow rain hat and that a yellow rain hat was found in the garage of Bari's landlord. He stated as follows:
In addition, and I think this is the strongest piece of evidence frankly, we have the yellow hat. I am convinced from looking at the surveillance video [from the bank] of September 9 that [the hat found in the garage] is the same type of hat as appears in the video. It may not be precisely the actual hat, but it is the same type of hat. It is just too much of a coincidence that the bank robber would be wearing the same hat that we find in [his landlord's] garage....
Judge Chin then noted several similarities between the hat found in the landlord's garage and the hat worn by the robber. To emphasize the similarity between the hats, he stated that "there are clearly lots of yellow hats out there," and that "[o]ne can Google yellow rain hats and find lots of different yellow rain hats."... Earlier in the proceeding, he had also stated that "[w]e did a Google search, and you can find yellow hats, yellow rain hats like this. But there are also lots of different rain hats, many different kinds of rain hats that one could buy."
After Judge Chin determined that Bari violated the terms of his supervised release, Bari appelead, claiming that Judge Chin violated Federal Rule of Evidence 605 through his actions. The Second Circuit disagreed, finding that Judge Chin was simply taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) (The Second Circuit correctly noted that the Federal Rules of Evidence do not apply in supervised release revocation hearings but still looked to them for guidance in its opinion).
According to the Second Circuit,
Rule 605 prohibits the judge presiding at the trial from testifying in that trial as a witness. Rule 201 permits a judge to take judicial notice of certain types of facts. Logically, then, if a fact is of a kind that a judge may properly take judicial notice of it, then he is not improperly “testifying” at trial by noting that fact. Any other conclusion would lead to Rule 605 effectively subsuming Rule 201. If, after all, a judge was improperly testifying at trial each time he took judicial notice of a fact, it would be effectively impermissible to take judicial notice of any fact. Accordingly, we must first consider whether the judge was taking permissible judicial notice of a fact, pursuant to Rule 201. If he could not have taken judicial notice of that fact within the bounds of Rule 201-because, for example, it was not a “matter[ ] of common knowledge”-then we consider whether the judge violated Rule 605. Here, we conclude that Judge Chin did permissibly take judicial notice of the fact that there are many kinds of rain hats for sale, and therefore we need not consider whether he “testified” at a trial over which he was presiding.