EvidenceProf Blog

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

Sunday, July 3, 2011

What Is This, An Interrogation?: Court Of Appeals Of Wisconsin Finds Trial Judge Crossed Line With Judicial Interrogation

Like its federal counterpart, Wis. Stat. Ann. Section 906.14 provides:

(1) Calling by judge. The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.
(3) Objections. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.

So, when does a judge cross the line from engaging in proper interrogation to becoming an improper advocate? According to the Court of Appeals of Wisconsin, the line is crossed when a judge engages in behavior like the judge in In re Exsavon A.J., 2011 WL 2462975 (Wis.App. 2011).

In Exsavon A.J., Roberta J.W. appealed from orders terminating her parental rights to her children, Exsavon and Dorraj, and from the order denying her motion for posttermination relief. According to the Court of Appeals,

During the trial, the trial judge asked countless questions of the witnesses and interjected numerous times. The County called Roberta adversely as its first witness in its case-in-chief. Roberta's testimony span[ned] over 100 pages on this first day of trial. The judge interject[ed] in some fashion on 95 of the 104 pages of the transcript of Roberta's testimony Roberta's testimony.

The judge also interrogated other witnesses in a manner that appeared adverse to Roberta. For instance,

During direct testimony of Roberta's former case manager, Penny Nevicosi, the judge engaged in the following exchange, eventually prompting the guardian ad litem (GAL) to lodge a strident objection:
[Judge]: Excuse me, from your, from your expertise and training, is it a good thing or a bad thing for a child of tender years to have to be the one that tries to comfort a parent, rather than vice-versa?
[Nevicosi]: I would say that's a bad thing.
[Judge]: And if a parent gets herself or himself in a situation where a child has to come over and try and calm and make the parent feel better and that child is, you know, two, three, four years of age type of thing, a parent who allows that to happen is—is that parent putting her child's or his child's needs first?
[Nevicosi]: No.
[Judge]: Did you explain to her that that was not—that was not only something she shouldn't do in front of the child, but that she was forcing the child to try and be her comforter, and that that was a very poor role model?
[Nevicosi]: Yes....

When the judge continued to engage is this sort of questioning several more times, the guardian ad litem lodged an objection, "want[ing] to make a record right now" that "on five occasions today" the judge was abusing his function and was not being fair to Roberta.

On appeal, the Court of Appeals of Wisconsin had to determine whether the trial judge exceeded the scope of his discretion under Wis. Stat. Ann. Section 906.14 in interrogating witnesses. And, according to the court,

The opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates or engage in excessive examination....In reversing a conviction in which a trial judge crossed the line of propriety, our supreme court recently explained that the trial judge "must not permit [himself or herself] to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander." a bystander." 

Moreover, the court held that

While a trial judge is permitted to exercise his or her discretion and ask questions during the course of a trial, this discretion "should be most carefully exercised," and the judge's questions must not betray bias or prejudice or bespeak a mind made up....Accordingly, while a trial judge should be permitted to ask questions in order to clarify material lines of inquiry, he or she must not cross the “fine line” into the appearance of partisanship.

The court then found that the case before it was not comparable to State v. Carprue, 683 N.W.2d 31 (Wis. 2004), in which the appealing party did not object to judicial interrogation at trial, and the Supreme Court of Wisconsin failed to find plain error. Instead, according to the Court of Appeals,

even though the trial judge faced a strong objection to his unfair conduct by the GAL, he made no effort to alter his objectionable conduct. The record reveals that the trial judge in fact doggedly carried on with partiality. During Roberta's trial, the judge exhaustively interrogated her. During Roberta's adverse testimony, the transcript reveals the judge's questioning and interjections on 95 of the 104 pages of trial transcript. Similarly, the judge questioned numerous other witnesses extensively. The judge's posttermination explanation that it was simply attempting to clarify the evidence in its role as a fact finder does not account for the improper role the judge played in Roberta's trial.

To be clear, the judge's lack of detachment is demonstrated not merely by the quantity of questions he asked, but by the nature of many of his questions. We agree with Roberta that contrary to the judge's opinion that he was merely attempting to clarify by “restat[ing] the testimony,” the judge's questions and supposed clarifications too often put words into the witnesses' mouths and revealed a bias against Roberta. The judge, at several points during testimony, and before Roberta had completed her case, gave indication that he had already decided the case adversely to Roberta....

Most disturbing to this court are the occasions the judge interrupted witness testimony in a plain attempt to impeach Roberta's credibility....

The trial judge's pervasive quantitative involvement coupled with its qualitative questioning led to the judge effectively usurping the role of counsel.

What I find most interesting about the opinion is the court's implicit acknowledgement that it might not have reversed in the absence of an objection by the GAL under a plain error analysis. I can understand the logic in requiring a party to object to judicial interrogation, but I feel that such a requirement places the party in an awkward position in relation to the judge. Eventually, I will get around to an article on this topic.



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