Tuesday, March 23, 2010
Federal Rule of Evidence 611(c) provides that
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
It is up to the judge to determine whether a witness is in fact a hostile witness, but, as the recent opinion of the Third Circuit in Government of the Virgin Islands v. Williams, 2010 WL 939916 (3rd Cir. 2010), makes clear, the judge shouldn't share (all of) his reasoning with jurors.
In Williams, Gregory Williams was convicted by a jury of first degree murder and related charges involving assault and illegal use of weapons. Williams thereafter appealed, claiming, inter alia, that judge engaged in reversible misconduct. One of these acts of misconduct occurred after defense counsel attempted to question an eyewitness for the prosecution, who admitted that he had used marijuana before observing the subject crime and claimed that “the weed does-don't affect you mentally-it just give you a natural high." After defense counsel attempted to challenge Smith's ability to identify Williams given the fact that he was enjoying his “natural high,” counsel was admonished by the trial judge who made the following comment in the presence of the jury, and while sustaining an objection by the prosecution:
But get to the-get to the perception. Because I'll tell you something. There's a lot of people I does smell that they be smoking, smoking thing, as you pass the cars, and they're better drivers than a lot of these other people on the road that just can't drive.
[The trial judge] continued with additional commentary:
So, my policies might be different from all the other judges. But, then again, I have been here longer than all the other judges. I'm the most senior associate judge so I don't-I have been doing this for a long time and nobody has ever found fault with it. So I don't follow the young folks. I go with my own policy. I've been around longer than all of them. Three of them put together don't have as much years as I have. So, I have my own policy.
All three Third Circuit judges hearing Williams' appeal found that this commentary was judicial misconduct sufficient to award Williams a new trial. One of the judges, though, wrote a separate concurrence to note that a separate act of judicial conduct would have been enough in and of itself to award Williams a new trial. Specifically,
At trial, Makeda Petersen was called as a witness to testify by the Government, and she testified that Williams was not the shooter at the scene. The Government, dissatisfied with her testimony, moved to have Petersen declared a hostile witness under Federal Rule of Evidence 611(c). The court agreed with the Government, and then, in the presence of the jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on to state that the court "deems her to be uncooperative and evasive, and particularly twice she has rejected questions by the Government calling her."
According to the concurring judge,
The prejudicial effect of remarks like this underscores why courts should not explain evidentiary rulings in the jury's presence. The trial judge's characterization of Petersen's testimony as "uncooperative and evasive" could very well have influenced the jury's assessment of whether or not to credit her testimony....In a case such as this, in which the jury heard contradictory accounts of the critical events and its ultimate decision depended upon whether it believed Petersen's testimony, judicial statements bearing upon the credibility of a witness, such as the trial judge's characterization of Petersen's testimony here, could be highly influential.