EvidenceProf Blog

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

Monday, October 18, 2010

This Can('t) Be My Testimony: Supreme Court Of Vermont Finds Judicial "Testimony" Automatically Requires New Trial

Like its federal counterpart, Vermont Rule of Evidence 605 provides that "[a] judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Moreover, it is well established that Rule 605 applies not only to statements formally given from the witness stand but also, inter alia, to judges engaging in off-the-record fact gathering. So, when a trial judge violates Rule 605 by engaging in such fact gathering, can an appellate judge deem this violation harmless error? According to the recent opinion of the Supreme Court of Vermont in State v. Gokey, 2010 WL 3934332 (Vt. 2010), the answer is "no."

In Gokey, Randall Gokey was charged with lewd or lascivious conduct with a child. On the morning of the second day of trial, Gokey's attorney reported that Gokey was having health issues, and the trial judge "granted a continuance until the early afternoon for medical personnel to examine [Gokey]. During this recess an ambulance transported [Gokey] to the emergency room of a nearby hospital." When trial resumed the next afternoon, Gokey's counsel reported that Gokey was still at the hospital, and the judge suspended trial until the next day.

The next day, there was a question about whether the trial had to be delayed again based upon medications taken by Gokey. After some initial proceedings, during which the judge talked with the officers who transported Gokey to the hospital there was a break, after which the judge offered the following summary of her actions during the break:

The first thing I did was call Walgreen's and talk to the pharmacy manager there, who I do not know. His name is Dave. I don't think I've ever met him and I don't go to that pharmacy and that's why I called that one. He told me that the dose of medication that Mr. Gokey is [on is] a high dose of medication. That certain people react to things in different ways, and it also depends on what other types of medication they're taking, and that drowsiness is a side effect of the medication, Meclizine. I described to him what [the transporting officer] had said at the bench about how quickly this came on today and he said that that is inconsistent with the effects of this medication.

Thereafter, the judge

recounted to the court a second conversation she held in chambers with the two transport officers "to get an indication from them as to Mr. Gokey's behavior yesterday after taking his medication." She declared that "based on everything I've heard, I believe...that Mr. Gokey is malingering at this point." Neither defense counsel nor the State received any notice of or were present at either of the judge's conversations with the pharmacy manager or the two transport officers. Having introduced the substance of the discussions, the judge then called the officers to the stand and questioned them under oath about defendant's conduct during transport and while in the court's holding cell. After she finished questioning the deputies, both defense and prosecution were provided an opportunity to question the officers. The State did not ask any questions; defense counsel did not question the first officer, but inquired of the second the number of persons in defendant's holding cell at the time the officer observed his condition.

Defense counsel then

notified the court that the nurse at the jail was ready to transmit the list of medications defendant had taken during the morning, so long as the court faxed the nurse an order to release the information. Defense counsel also argued a doctor would be needed to interpret the medications and explain their side effects. Finally, she noted that the pharmacy manager the court had contacted was not present in court. The judge responded, "I know and that's why I put it on the record, because it's clearly not evidence." The court refused to hear any more evidence or grant the order to release information and decided to proceed....

After Gokey was eventually convicted, he appealed, claiming, inter alia, that the trial judge's actions violated Vermont Rule of Evidence 605. In finding that the trial judge indeed violated Rule 605, the Supreme Court found that the Rule covers not only statements by judges formally given from the witness stand but also judges engaging in off-the-record fact gathering, which essentially transforms them into witnesses.

The court then noted that Gokey asked it "to adopt a standard that when a judge acts as a witness in violation of Rule 605 prejudice is presumed and the judgment must be reversed." The court then acknowledged that "[s]everal other state courts have done so in similar contexts, recognizing that 'imposing a burden on a litigant to prove prejudice through the testimony of one disqualified from testifying is an impossible standard.'" In agreeing with these courts and reversing Gokey's conviction, The Vermont Supremes concluded that

Here, the trial court's initiation of the ex parte communications, whether actually relied upon or not, severely impaired, if not completely ruined, any appearance of neutrality, and we must presume prejudice to defendant. Though the judge stated the call to the pharmacy and the in camera meeting with the officers was not evidence-indeed in ruling on defendant's competence she claimed she "rel[ied only] on... the sworn testimony of the transport officers"-the damage to the appearance of impartiality had been done. This strict standard assuming prejudice is especially important when it is the trial judge who acts inappropriately because any challenge to her authority necessarily places the lawyer in the untenable position of having to decide whether to let the statement go unchallenged or risk antagonizing the trial judge by questioning her impartiality....Rule 605 itself supports adoption of this standard as it expressly notes that: "No objection [to a judge testifying as witness] need be made in order to preserve the point." We likewise hold that no showing of prejudice is required.



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