Tuesday, October 16, 2012
I Rest My Case: Arkansas Judge Calls For Additional Witnesses After Both Sides Have Rested In Child Custody Case
The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.
The recent opinion of the Court of Appeals of Arkansas in Cowan v. Arkansas Dept. of Human Services, 2012 Ark. App. 576 (Ark.App. 2012), raises an interesting issue under Rule 614(a): Should the court be able to call additional witnesses after all parties have rested their respective cases?
In Cowan, James and Pauline Cowan appealed from the order of the Craighead County Circuit Court dismissing their petition to adopt seven-year-old E.C. At the conclusion of the hearing on the Cowans' petition to adopt E.C.,
the circuit court stated that it faced a difficult decision and that it was concerned about the lack of direct evidence concerning the allegations from E.C.'s prior school that had been noted in the petition for emergency custody. The court found that the hearing should be continued until January 2012 so that the parties could procure witnesses from the school that had first-hand knowledge of E.C.'s situation when she lived with the Cowans. The court also ruled that the parties would be able to cross-examine these additional witnesses and to call rebuttal witnesses if they desired. The Cowans strenuously objected to the court's ruling, arguing that both parties had rested and that the court did not have the authority to call for additional evidence. The court overruled the objection, stating that it did have the authority to do so under the plain language of Ark. R. Evid. 614 and that the additional evidence was necessary for the court to decide what was in E.C.'s best interest in this case. Although the court admitted that it did not have knowledge of the specific witnesses that should be called, it suggested that the principal of the school would be a good place to start.
After the circuit court denied the Cowans' petition to adopt E.C., the Cowans appealed, claiming, inter alia, that the court could not call witnesses after both parties had rested their cases. The Court of Appeals of Arkansas disagreed, finding that
the Cowans...cite no authority for their contention that Rule 614 is not applicable where the parties have rested their cases. In fact, in one of the cases cited in their brief, Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995), our supreme court noted that a case-in-chief may be reopened for the taking of additional evidence and that such a matter is committed to the discretion of the trial court. Further, in Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972), the court stated that the reasons for restraint upon the trial judge are minimal where the judge is the trier of fact and that his responsibilities for elicitation of all pertinent facts are increased. Thus, the trial judge has "the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed."... properly developed."...
The court then concluded that
This was precisely the circuit court's concern in this case, as it had not heard any testimony from witnesses with first-hand knowledge of the allegations made in the FINS petition. As the court noted in response to the Cowans' objections at the hearing, its ruling would have been different had the case been one for dependency-neglect, where DHS has the burden of proof. In that situation, the court stated that it would have dismissed DHS's case for insufficient evidence. However, this case involved the adoption of E.C., and the overriding concern of the circuit court in such cases is determining what is in the best interest of the child....Thus, it was well within the circuit court's discretion to request that additional evidence be submitted.
Given that Cowan was a child custody case, I don't have a problem with the court's conclusion. I am, however, confused by the court's citation to Hillard v. State. In Hillard, the court pointed out that a court may allow the prosecution to re-open its case-in-chief after the prosecution has rested. The court, however, did not say that the judge may call witnesses for the prosecution after the prosecution has rested. Indeed, this would make no sense because the judge calls his own witnesses under Rule 614 and cannot call witnesses for the prosecution or witnesses for the defense.
So, should a judge be allowed to call witnesses after the prosecution in a criminal case has rested or after both the prosecution and the defense have rested in a criminal case? Given that the prosecution has the burden of proof of every element beyond a reasonable doubt, it would seem to me that this would be fundamentally unfair. I suppose there are cases in which there is not reasonable doubt and in which the court could call witnesses who would establish reasonable doubt. But I would think that in the overwhelming majority of cases, the court would call witnesses under these circumstances because of a lingering reasonable doubt.