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October 18, 2012
I Rest My Case, Take 3: Court Of Appeals Of Hawai'i Finds No Problem With Judge Calling Witness After Both Parties Rested
The last few days, I have posted entries (here and here) about judges using Rule 614(a) to call witnesses in a criminal case after both parties have rested. In my first post, I noted that "[g]iven 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." In my second post, I repeated this concern, "speculati[ng] that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt." It seems that defense counsel in State v. Medeiros, 909 P.2d 579 (Hawai'i App 1995), raised a similar concern. So, how did he fair?
Medeiros was a bench trial in which Alexander Medeiros was found guilty in a jury-waived trial of Driving Under the Influence of Intoxicating Liquor. Similar to one of the cases in yesterday's post, after each party had rested, there was a question about whether Medeiros was the driver of the subject vehicle. Before this point, Sergeants William Watkins and Mark Kajiwara were not called by either side. Additionally, neither side had called John Matthews, whom Medeiros had claimed was driving the subject vehicle.
After both sides rested,
The defense questioned the court's purpose in calling the additional witnesses, pointing out that the State had the burden of proof in the case:
The court replied, “Believe me, I'm doing it in your client's interest.” The court relied on Hawai‘i Rules of Evidence (HRE) 614:
I wouldn't normally [call witnesses] in a DUI case, but I want to know. And that's what [HRE] Rule 614 gives me the option to do. I want to find out. At this point all I can tell you is the officers sound very credible and I want to explore it as best I can. And I think at this point it is only in the defendant's interest that I do that.
The court then granted a continuance, after which both sides indicated that they could not locate Matthews and that the sergeants were both on sick leave. In response,
The court indicated, "Although I know it is an inconvenience to [Defendant], I'm inclined to continue it one more time. Believe me, it's in [Defendant's] interest to do that." Defense counsel objected to the continuance, stating, "we've rested and we're prepared to argue. It seems, Your Honor, since the Court has ordered new witnesses, that the Court has some doubt about whether [Defendant] was the driver. We're prepared to argue on that basis." The court refused, expressing its desire to hear from "one or both of the sergeants[.]"
After another continuance,
THE COURT: Under [HRE Rule] 614 I'm entitled to call witnesses given the diametrically opposed testimony regarding what was said in front of the sergeants on the scene. I want to hear what they have to say, so I'll overrule your objection, and I'll note categorically this is not meant to bolster the State's case at this point.
But, of course, bolster the State's case is exactly what the testimony of the Sergeant's did as they seemingly erased any reasonable doubt that the judge had and allowed him to find Medeiros guilty of the crime charged. Specifically, Medeiros alleged that he told both Sergeants that he was not the drive of the subject vehicle while both officer testified to the contrary.
After he was convicted, Medeiros appealed, repeating his argument that it was improper for the court to call these two witnesses after both parties had rested. The Court of Appeals of Hawai'i disagreed, concluding that
In this particular case, we do not believe that the calling of the two sergeants as witnesses necessarily benefited the State's case. The State was not obligated to call these witnesses. Their testimonies were not essential to establish prima facie evidence of the elements of the offense. The sergeants did not provide evidence that had not already been established by the State's witnesses in the main trial. The sergeants were called because Defendant testified he informed the sergeants he was not the driver of his vehicle. Their answers could have supported Defendant's claim. Under the circumstances, we cannot say that the court acted in a partial manner and, thus, abused its authority in calling the witnesses pursuant to HRE Rule 614.
Again, I take issue with the actions of the court. I think that defense counsel perfectly laid out the dichotomy that should exist under Rule 614(a) when the judge seeks to call a witness in a criminal case after both sides have rested. If the judge is simply calling the witness for purposes of clarification, Rule 614(a) should allow the witness to be called. Imagine, for instance, that a shooting takes place at a restaurant, and various eyewitnesses give confusing and conflicting testimony about the layout of the restaurant. The court could very well call the restaurant's owner to resolve this uncertainty.
On the other hand, if the judge is simply calling a witness to erase a lingering reasonable doubt, Rule 614(a) should not allow the witness to be called. This was seemingly the case in Medeiros. In Medeiros, it wasn't a case where Medeiros claimed that he said one thing, another witness claimed that he said something slightly different, and the court called a third witness to resolve the ambiguity. Instead, Medeiros claimed that he told the Sergeants that he did not drive the subject vehicle. And the judge, despite claiming that he was calling the Sergeants to help the defendant, called the Sergeants so that they could refute his claim and erase any reasonable doubt.
October 18, 2012 | Permalink
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That's hindsight bias CM. Yes, it's true that in this case the additional witnesses removed reasonable doubt but that was not a predetermined conclusion; their testimony could have easily increased reasonable doubt as well. I don't think the test should be an outcome based test. The question should be the judge's motive for calling the extra witnesses. Was it to elucidate the facts of the case so the judge could make an informed decision or was there some other motive.
Yes, it's true the state has the burden to prove its case and the judge should not be going out of his or her way to help them make that case. But if the state does such an ineffective job that it makes a mockery of justice the court isn't, to use the telling phrase, a prisoner to the case made by both the parties. I'll admit that this case is a closer call than the other two you presented but like the appeals court I think that these types of cases are rare enough that I respect the discretion of the trial courts absent some evidence that the practice is being abused.
Posted by: Daniel | Oct 18, 2012 1:37:37 PM
Daniel, that's a fair point, but I don't think that I am advocating an "outcome based" test. Then again, I'm not quite sure exactly what I am advocating yet. I *think* that I am advocating a "clarification" test. If there is something unclear because of conflicting/ambiguous testimony or evidence, a judge can use his Rule 614(a) power after both sides have rested. For example, Eyewitness A testifies that he saw Defendant shoot Victim while Eyewitness B testifies that it was not Defendant who shot Victim. After both parties have rested, the judge could call Eyewitness C.
But that wasn't the case in Medeiros. Instead, Medeiros testified that he told the two sergeants that he was not the driver. There was nothing ambiguous about the testimony. The judge was simply unsure of whether he believed Medeiros. And that's why he granted the two continuances so that the sergeants could testify. Now, it is true that this testimony could have helped or hurt Medeiros depending on whether they corroborated or refuted his claim. But the point is that there was nothing to clarify. This would be as if only Eyewitness B testified that Defendant did not shoot Victim, and the judge called Eyewitness A after both sides rested because he was unsure if he believed Eyewitness B.
Again, though, I'm not sure whether such a "clarification" test makes sense, whether the status quo is fine, or whether some other test would make more sense. What I DO know is that courts consistently say that courts should "sparingly" use their Rule 614(a) power to call witnesses after both parties have rested. And yet, these courts almost categorically find that judges have not erred by engaging in this practice. Is this mere lip service, and, if not, what would prevent a judge from calling a witness after both sides have rested?
Posted by: Colin Miller | Oct 18, 2012 3:48:29 PM