Sunday, October 28, 2012
In a series of five posts, I have addressed the question of whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts to call additional witnesses after both parties have rested. One of the reasons that I have written these posts is that I wonder whether courts should be able to call witnesses after both parties have rested, particularly in a criminal case. Another reason, however, is the simple lack of much precedent at all about whether and when judges can exercise their Rule 614(a) power either after or after the parties have rested. In United States v. Flores, 702 F.Supp.2d 794 (E.D.Mich. 2010), the Eastern District of Michigan noted this gap in precedent and attempted to fill the void. So, how did it do?
The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
Unfortunately, the case doesn't give any details on the nature of the conspiracy or Judeh's proposed testimony, but what we do know is that Flores objected to the judge calling him as a witness. According to the court,
As Defendant points out, Rule 614(a) provides neither explicit standards nor general signposts for ensuring that a court remains on the permissible "judicial" side of this line, and the case law likewise fails to shed much light on this precise question. Nonetheless, this same potential danger of improper judicial "advocacy" is equally present when a court exercises its authority under Rule 614(b) to interrogate a witness called by one of the parties. In either event, the court's involvement poses the risk of an "appearance of partiality which can easily arise if the judge intervenes continually on the side of one of the parties."...Along the same lines, the Fourth Circuit has emphasized that "[t]rial judges are not backstop counsel, entitled to step in whenever a point may be more eloquently delivered or a tactical misstep avoided."...
Yet, as illustrated by the abundant case law addressing a trial court's authority under Rule 614(b) to question witnesses, this mere potential for abuse does not dictate that a court altogether refrain from exercising this authority; it merely imposes upon the court an obligation to proceed with care when doing so.
The court then found that
Applying this analogous case law here, it is clear that an abstract potential for abuse is not enough to defeat the Court's authority under Rule 614(a) to call a witness. Rather, the Court must proceed carefully when exercising this authority, and must ensure that it acts consistently with its judicial role. As explained in the February 10 order, the Court has determined that"“its fact-finding obligations, as well as the interests of justice, will best be served by calling Mr. Judeh as a witness pursuant to Rule 614(a)."...In so ruling, the Court is confident that it has not abandoned its judicial role and become an advocate for either party. To the contrary, the Court views this ruling as part and parcel of its obligation to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth."..."It is neither possible nor desirable for district judges to sit back and observe trials as nonchalant spectators."...Rather, "[i]t is the very function of the trial court to establish the facts as clearly and completely as possible."