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

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Friday, May 14, 2010

Judge, Jury & Investigator: Court Of Appeals Of Arkansas Finds Trial Judge Improperly Took Field Trip To Appellant's House

Like its federal counterpart, Arkansas 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

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

In Kinard, Tammy Kinard appealed from an order terminating her parental rights in her daughter, J.K. At the termination hearing, CASA director Glenda Evans

produced a series of photographs taken on April 15, 2009, which was the last time before the termination hearing that CASA was able to obtain access to [Kinard]'s home. Evans testified that the photographs showed that [Kinard]'s bed was very dirty with feces on it; that there were feces all over the commode; and that there were other unkempt and cluttered areas. [Kinard] objected that the pictures were "five or six months old," at which point DHS's attorney suggested that the court take a recess and visit [Kinard]'s home. The court did so with all counsel, [Kinard], and the bailiff present. [Kinard] voiced no objection.

After the order terminating Kinard's parental right was subsequently entered, she appealed, claiming "that the court 'erred by making a home visit to [her] apartment to view the conditions of her home and by failing to ensure that a record was made of what occurred during that visit.'" The Court of Appeals of Arkansas acknowledged that there might be merit to Kinard's argument, noting that

Arkansas law has long permitted a fact-finder to leave the courtroom and view a site that is material to the matter being tried.....However, in more recent cases, particularly those involving bench trials, the supreme court has retreated from its position that a fact-finder's view may serve as evidence and has restricted such views to their usefulness as an aid for better understanding testimony that is already on record....As a result, our courts now recognize that, when a judge's view exceeds that limited purpose, the judge commits error.

The question that the court thus had to answer was "whether the circuit judge's visit to [Kinard]'s home was undertaken for the purpose of understanding the proof that was already on record, which would be permissible, or whether, as characterized by [Kinard], the judge's inspection was an 'evidence gathering foray,' which would not be permissible." According to the court, it was the latter:

We conclude that the judge's view exceeded the scope allowed by our supreme court. The purpose of the court's visit was to acquire new evidence regarding the current state of [Kinard]'s home rather than to afford clarification or understanding of previously received testimony. While we understand the court's desire to bridge the gap in the photographic evidence by making a quick visit to [Kinard]'s home, we think that the better practice would have been for the court to dispatch the attorneys, parties, and a witness to observe [Kinard]'s apartment, then have the witness report back to the court on the record with a description of what was seen. Instead, by undertaking a personal view of the premises, the court added to the quantum of proof, which was contrary to law.

(The court, however, affirmed, finding this error to be harmless).

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/605--kinard-v-arkansas-dept-of-human-services2010-ark-app-422-----sw3d------2010-wl-1904515arkapp2010.html

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