Thursday, September 9, 2010
Judge, Jury, And interrogator, Take 4: First 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.
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 First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).
In Santana-Perez, Luis Eligio Santana-Pérez and Aquiles Carpio-Pouret were found guilty of violating 18 U.S.C. § 2237(a)(1), which makes it a crime "for the master, operator, or person in charge of a vessel of the United States, or a vessel subject to the jurisdiction of the United States, to knowingly fail to obey an order by an authorized Federal law enforcement officer to heave to that vessel." Their convictions were based upon the following facts:
In the pre-dawn hours of March 15, 2008, the Coast Guard cutter Matinicus was patrolling the Mona Passage between Puerto Rico and the Dominican Republic when a member of the crew sighted a small vessel leaving Mona Island, Puerto Rico and heading toward the Dominican Republic. The crew member reported the sighting to Chief Warrant Officer Michael Levecque, who ordered that the Matinicus be brought about to intercept the vessel. As it later turned out, Santana-Pérez was operating the small vessel and Carpio-Pouret was also in the vessel.
At around 5:10 a.m., the crew of the Matinicus activated its blue law enforcement light on the ship's mast; shined a spotlight on the defendants' vessel; blew the ship's whistle; and began directing the defendants to stop in both English and Spanish using the ship's loud hailer. The defendants did not stop at that time. A "non-compliant boarding team" launched from the Matinicus in a small vessel at 5:15 a.m. and arrived alongside the defendants' vessel one minute later. The boarding team activated a blue light on its vessel and began commanding the defendants to “stop the vessel, stop the vessel.” The defendants did not stop. The boarding team made a second approach while repeating the command to stop, but, again, the defendants did not stop. Finally, on a third approach, the boarding team told the defendants that force would be used if they did not stop. The defendants turned off their motor at that point and were taken into custody. About twelve minutes elapsed between the time the Matinicus activated its blue light and the time the defendants stopped.
After they were convicted, the defendants appealed, claiming, inter alia, that the district judge was overly aggressive and signaled to the jury that the judge disbelieved Carpio-Pouret's testimony. In reviewing this issue, the First Circuit focused upon the following exchange:
THE COURT: And how far from the coastline were the [fishing] traps?
DEFENDANT: Well, I can't tell you how far away those traps were because, as I stated earlier, I don't know about measurements out at sea. [ ... ]
THE COURT: How long have you been fishing?
DEFENDANT: All my life.
THE COURT: And you can't tell distances in the sea? You can't tell me those traps were ten, 15 miles offshore?
DEFENDANT: No, I can't say. [ ... ]
THE COURT: All right. And when your motor stopped working, were you near the other fishermen?
DEFENDANT: Not that close. We were barely able to see them.
THE COURT: Why didn't you communicate with them?
DEFENDANT: We didn't have any instruments to communicate with them. We tried to signal them with our shirts, but we were unsuccessful at that. [ ... ]
THE COURT: When you dropped off the gas, the motor was still operating?
DEFENDANT: That is correct.
THE COURT: And then you turned around and headed towards the Dominican Republic to get the traps; is that correct?
DEFENDANT: Well, no, sir. We headed somewhat parallel to-I don't know. But we headed-well, we headed southeast. I don't know, maybe it was that. I don't know what bearing we took. [ ... ]
THE COURT: And that was a course that was not taking you to the Dominican Republic.
DEFENDANT: No, sir.
According to the First Circuit,
this exchange and others like it skirted dangerously close to the line between questioning intended to clear up muddled or gap-filled testimony, which is permissible, and questioning that signals the court's disbelief of the witness, which is not...The question about distances at sea, in particular, implies that the court was having trouble believing Carpio-Pouret's story.
That said, the First Circuit noted that the defendants did not object to this judicial interrogation, meaning that it could only reverse for plain error, which it was not willing to find. So, does it make sense that a party has to object to judicial interrogation but does not have to object to judicial testimony (or the equivalent of testimony)? 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.
Really? If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on.
But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don't see why an objection to judicial interrogation is required by an objection to judicial testimony is not.