EvidenceProf Blog

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

Thursday, December 23, 2010

Judicial Guidance: Court Of Appeals Of Kentucky Applies Three Factor Test To Judicial Interrogation

Like its federal counterpart, Kentucky Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." But when does a judge cross the line into advocate for one of the parties, necessitating a new trial? As the recent opinion of the Court of Appeals of Kentucky in Amos v. Clubb, 2010 WL 5018471 (Ky.App. 2010), makes clear, however, many courts have adopted a three-factor test to determine whether judicial interrogation is proper.

In Clubb, Jackie Amos and Patricia Sibley unsuccessfully challenged the validity of the Last Will and Testament of Terry Clubb. They thereafter appealed from the trial court's judgment upholding a jury verdict finding that Terry's will was not the result of undue influence.

That will was executed at the office of attorney Bill Brammel, with Josh Clubb, a law clerk, and Toni Hall, an administrative assistant, witnessing Terry's signature. At trial, Brammel and Hall both testified that Clubb appeared to be competent when he executed his will. After both of the parties interrogated these witnesses, the trial judge stepped in and conducted his own interrogations.

After the trial court found that Terry's will was not the result of undue influence, Amos and Sibley appealed, claiming, inter alia, that the trial judge's questioning of Brammel and Hall unduly enhanced those witnesses' credibility, to the prejudice of their case. In addressing this argument, the Court of Appeals of Kentucky found that

A trial judge, when questioning a witness, should avoid imposing her opinion as to the credibility of that witness and must avoid crossing the line between impartial arbiter and advocate....To guide trial judges, the Supreme Court of Kentucky adopted the three-factor test used in Federal courts.

First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness' [sic] testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed.

Moreover, according to the court,

none of the three factors applies to this case. The trial was lengthy, but not overly complex. The attorneys were neither unprepared nor obstreperous. In fact, they appeared to be well prepared and fully cooperative with each other and the court. Finally, neither Brammel nor Hall was a difficult witness. Therefore, under Terry, it appears the trial judge should have resisted the urge to insert herself into the proceedings.

Thus, the court found that the judicial interrogation was erroneous, but it found this error to be harmless because

the trial judge's questioning of Brammel and Hall dealt exclusively with the issue of Terry's competence. That issue, by itself, was not before the jury. The issue before the jury was whether Terry's Will was the product of undue influence and, while competency is a factor in determining undue influence, it is not the only factor.

Several witnesses did testify that Terry was weak, had difficulty speaking in his final days, and sometimes repeated himself; testimony that did not necessarily contradict the testimony of Brammel and Hall. None of the witnesses testified that Terry was unaware of what was taking place on March 22 when he discussed the provisions of his Will with Brammel or on March 25 when he executed his Will. Furthermore, we note that it was Terry who asked Dean to recommend an attorney and that Dean recommended Brammel because he was “an ethical man” and “a good Christian man.” Faced with this evidence, and in particular Dean's testimony regarding Brammel's character, we conclude that any enhanced credibility that Brammel and Hall received by the trial judge's questioning was not prejudicial to Jackie and Patricia's case. Therefore, although unwarranted, we discern no reversible error in the trial judge's questioning of Brammel and Hall.



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