EvidenceProf Blog

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

Friday, May 28, 2010

Prejudging: New Jersey Appellate Court Reverses Restraining Order Based On Trial Judge's Pror Knowledge

Like its federal counterpart, New Jersey Rule of Evidence 605 provides that

The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point.

As I noted in a recent post,

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, the judge intentionally engaged in off-the-record fact gathering. But as the recent opinion of the Superior Court of New Jersey, Appellate Division in T.J. v. G.G., 2010 2089676 (N.J. Super.A.D. 2010), makes clear, the Rule also applies to a judge who unintentionally engages in off-the-record fact gathering.

In G.G., T.J., the plaintiff, and G.G., the defendant, had

a child who [wa]s almost three years old. Plaintiff T.J. alleged in her domestic violence complaint that defendant made a terroristic threat and committed an act of harassment while plaintiff and her mother were waiting for a visitation hearing outside of a courtroom in Essex County on July 2, 2008. According to plaintiff, defendant walked up to her and said, “this is your last time in court." Plaintiff testified she felt threatened by defendant's statement because of "the way he said it" and "the tone of his voice."

The following is an excerpt of an exchange between defense counsel and the trial judge concerning the latter allegation:

[DEFENDANT'S ATTORNEY]: There's no testimony before this Court, there's nothing in this record today that said that they recommend filing a restraining order.... [W]ith all due respect to the Court, I don't know where the Court's gathered that information.

THE COURT: Because the Court was here when it happened so the Court knows. I do recall-we can get the testimony from them, when it happened out in the hallway there was a large commotion, officers were out there, and the next thing the Court was advised was that plaintiff was filing a restraining order.

[DEFENDANT'S ATTORNEY]: Anybody can do that. How many times a day do they have to go out there and calm people down? ... With all due respect to this Court, the Court really shouldn't consider things that aren't in the record or consider prior knowledge that the Court has of the case in rendering a decision....

THE COURT: I didn't hear the threat. I just knew the process in which she filed. She was in front of me

After the trial judge entered a domestic violence final restraining order against him, G.G. appealed, claiming, inter alia, that his matter should have been heard by a judge who was not familiar with the facts of the case. The appellate court agreed, citing comment 1 to New Jersey Rule of Evidence 605, which states that "When the judge is the trier of the facts he must not permit his own personal knowledge to influence his decision in the case." Because the appellate court found that the trial judge did allow his personal knowledge to influence its decision, it reversed and remanded.



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