EvidenceProf Blog

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

Tuesday, March 30, 2010

Judge, Jury, And interrogator, Take 3: Seventh Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal Rule of Evidence 605 provides that

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.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the Seventh Circuit in United States v. Barnhart, 2010 WL 1136522 (7th Cir. 2010).

In Barnhart, Gregory Barnhart was convicted of two counts of wire fraud-one involving a fraud on a former employer and the other involving a fraudulent scheme to obtain a $500,000 loan from Sun Trust Bank secured by E.I. du Pont de Nemours abd Company. After he was convicted, Barnhart appealed, claiming, inter alia, "that the district judge's questioning of witnesses was highly prejudicial and either overtly or subtly conveyed a bias in favor of the government." And the Seventh Circuit agreed with him, noting that, inter alia,

the court engaged in a quasi-cross-examination of a defense witness by using leading questions in a way that largely dismissed his testimoiny;

several questions from the judge served to emphasize uncontested facts that were highly unfavorable to the defense; and

interrogated a witness for the prosecution in a way that bolstered his credibility and took the wind out of the sails of the defense attorney's cross-examination.

According to the Seventh Circuit,

Considered as a whole and in light of the entire trial, the judge's questioning of the witnesses went beyond mere clarification and instead gave the impression that the judge disbelieved Barnhart's defense. Trial judges need not be silent spectators, but they are neutral arbiters; the quantity and quality of the judge's questions in this case conveyed an improper skepticism about Barnhart's defense.

The problem for Barnhart, however, was that he did not object to the judge's questions, meaning that the Seventh Circuit could not reverse for abuse of discretion but instead had to find plain error. Because it could not find plain error, the Seventh Circuit was not able to reverse. Conversely, if the district judge testified, the Seventh Circuit could have reversed if it merely found that the trial judge abused his discretion.

Does this disntiction make sense? The Advisory Committee Note to Federal Rule of Evidence 605 indicates that:

The rule provides an "automatic" objection. 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.

But what about the situation in Barnhart? If defense counsel objected to the district judge's questions, wouldn't the judge have felt that his integorty was being attacked? I can't think of any good reason why an objection to judicial interrogation is required but an objection to judicial testimony is not.



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But --- nobody should have to tell a judge that s/he can't testify at the trial over whichs/he is presiding. However, given that a judge is allowed to ask questions, a judge may not realize that s/he is appearing to favor one side or the other in his or her questioning. The aggrieved party should have to clall it to the judge's attention in order to "sensitize" the judge to the appearances being fostered by the judge. This may lead to the judge to stop acting in that way and to an instruction to the jury not to think the judge favors one side (if only to protect the verict). I think the risk of incurring the rath of the judge by lodging the objection is negligible. This is the point of the contemporaneous objection requirement: if it can be fixed at trial, you have to ask for a fix.

Posted by: Fred | Apr 1, 2010 1:53:15 PM

Fred, thanks for the comment. Here's my question, though: If the point of the contemporaneous objection requirement is that if it can be fixed at trial, you have to ask for the fix, why does it not apply to judicial testimony? The ACN suggests that the reason is that the objecting party would incur the wrath of the judge. As you note, the risk of incurring the wrath of the judge is negligible when there is an objection to judicial interrogation. Do you think that an objection to judicial testimony is more likely to incur the wrath of the judge? As you note, nobody should have to tell a judge that he can't testify. In those rare cases, though, where the judge does testify, I don't see why an objection would incur his wrath. It is clear that the judge made a mistake, and the objection merely suggests error, not bias.

Posted by: Colin Miller | Apr 2, 2010 3:38:05 PM

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