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Univ. of South Carolina School of Law

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Saturday, October 16, 2010

I'll Be The Judge Of That: New Jersey Court Finds No Problem With Lengthy Judicial Interrogation Of Pro Se Defendant

Under New Jersey Rule of Evidence 614, "The judge, in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." In exercising this authority to interrogate witnesses, however, the judge must be sure to maintain his judicial neutrality and not assume the role of an advocate for either party. In its recent opinion in K.C. v. J.K., 2010 WL 4007554 (N.J.Super.A.D. 2010), the New Jersey Superior Court, Appellate Division, found that a trial judge properly exercised his authority under Rule 614 during his interrogation of a pro se defendant. If the defendant's allegations are true, I disagree.

In J.K., J.K. appealed from a final restraining order barring him from the residence and places of employment of plaintiff K.C. and prohibiting him from having any contact and communication with plaintiff and her two daughters, K.G. and B.G. One of the grounds for J.K.'s appeal was that

the judge only allowed [him] to utter one sentence on his presentation of his direct testimony before beginning a cross-examination. [J.K.] contend[ed] that the court's cross-examination covers eleven pages of testimony. He contends the judge's examination was replete with admonitions and skillful, adversarial questioning. [J.K.] urge[d] that the judge's questioning was "good lawyering," but improper from the bench.

In turning this argument aside, the court initially noted that "One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully." It then concluded,

We have carefully reviewed the transcript of the hearing and are satisfied that the judge did not exceed the bounds of the discretion accorded him with respect to questioning witnesses. This was, after all, a bench trial, and the judge, as finder of the facts, had a duty to search out the truth. There was no impermissible tilting of a trial in favor of plaintiff. Where a litigant appears pro se, the judge may often have "to focus the testimony and take over the questioning of the parties and witnesses." That is all that was done here.

Maybe it was, but not if K.C. was being accurate. As the court, noted, after a witness testifies, a judge may ask questions to elicit the truth more fully. And when a litigant is pro se, the judge may very well have to take over the questioning of witnesses to focus testimony after the litigant's interrogation has gone astray. But according to K.C., he got to utter merely one sentence of his self-interrogation/testimony before the judge interjected with an interrogation that covered eleven pages of testimony. To me, that seems wholly improper under Rule 614.

Now, maybe K.C. was exaggerating and he in fact went on for well more than a sentence, with the judge having to interject because it was clear that his self-interrogation/testimony was not focused. If that were the case, though, the appellate court should have said so.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/leading-s-kc-plaintiff-respondent-v-jk-defendant-appellant-a3d-2010-wl-4007554njsuperad2010.html

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