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

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Thursday, March 18, 2010

Judge, Jury, and Interrogator, Take 2: Court Of Appeals Of Virginia Finds Judicial Interrogation At Sentencing Hearing Was Proper

Federal Rule of Evidebce 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Virginia does not have codified rules of evidence, but its courts also generally allow judges to interrogate witnesses. In a post last week about Iowa Rule of Evidence 5.614(b) last week, I noted that Iowa courts discourage judicial interrogation, "particularly where the jury is the fact finder." The recent opinion of the Court of Appeals of Virginia in Aispuro v. Commonwealth, 2010 WL 906636 (Va.App. 2010), a case where the judge was the fact finder. And, as the court's opinion makes clear, judicial interrogation in such a case is not similarly discouraged.

In Aispuro, upon his plea of guilty, Jose Ramon Aispuro was convicted of felony child neglect. At the ensuing sentencing hearing, defense counsel asked Aispuro a question, and he began giving an answer. Defense counsel interrupted him, however, and told him to "Talk-talk to the Judge." The q & a between defense counsel and Aispuro then continued. Thereafter, the judge briefly interrogated Aispuro. At the end of the sentencing hearing, the court sentenced Aispuro to ten years imprisonment with all but three years suspended, followed by ten years of probation.

Subsequently, Aispuro filed a motion to reconsider his sentence, alleging that the trial judge abandoned her neutral judicial role and became a prosecutor in the case. The Court of Appeals of Virginia, however, found that this argument was without merit, initially noting that defense counsel invited at least some questioning of Aispuro when, on direct examination, he told him: ‚ÄúTalk to the Judge."  I disagree with this conclusion. I can't tell for sure based upon the court's opinion, but it seems to me that defense counsel was merely telling Aispuro to direct his responses to the judge, and I certainly don't think that defense counsel was telling the judge that he could question Aispuro.

In the end, though, I don't think that this point matters because the court went on to find that

Even if defense counsel had not done this, it is not the case that judges are uniformly prohibited from questioning witnesses. "It is not to be inferred from what has been said that a trial judge may not ask questions of a witness either on his examination in chief or on cross-examination. The practice is common and perfectly permissible."...Many Virginia decisions emphasize that the trial judge must exercise this discretion cautiously and "should refrain from indicating in any way his views upon the weight or quality of the evidence."

Importantly, though, the court found that "the dominant rationale for this admonition appears to be the need to prevent the judge from invading the province of the jury." Thus, "[i]n a sentencing proceeding in which the judge is the fact finder these concerns are relaxed." Accordingly, the court found that the brief interrogation of Aispuro by the trial judge was proper.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/03/judicial-interrogationaispuro-v-comnot-reported-in-se2d-2010-wl-906636vaapp2010.html

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