Wednesday, July 17, 2013
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
The court may interrogate witnesses, whether called by itself or by a party.
Moreover, the Committee Comment to Rule 614 states that
A specific objection is required to preserve the issue for appeal. See rule 103. However, the objection need not be made contemporaneously with the objectionable act if the jury is present. The objection can be made at the next available opportunity when the jury is absent.
So, a party does not need to object to judicial testimony to preserve the issue for appellate review, but a party does need to object to judicial interrogation to preserve the issue for appellate review (although this objection can come outside the presence of the jury). Fair or unfair? Consider the opinion on the Court of Appeals of Minnesota in State v. Prewitt, 2013 WL 3491078 (Minn.App. 2013).
In Prewitt, Freddie Prewitt allegedly had vaginal and anal sex with a woman (A.E.) who lay unconscious after she ingested heroin, prompting the prosecution to charged him with third-degree criminal sexual conduct. After the sexual act,
The examining nurse swabbed A.E.'s vagina and rectum. DNA testing of the swabs revealed semen that matched Prewitt's DNA profile maintained on a BCA database. A police investigator interviewed Prewitt, who denied ever having any sexual contact with A.E. The investigator obtained a DNA sample from Prewitt, which matched the DNA obtained from A.E.s sexual-assault examination.
After he was convicted, Prewitt appealed, claiming, inter alia,
that the district court showed bias and bolstered the state's case when it asked a sexual-assault examining nurse how swabs were labeled, and he asserts that by doing so the district court adopted the role of an advocate.
The Court of Appeals of Minnesota agreed, concluding that
A district court may question witnesses. Minn. R. Evid. 614(b). But doing so without appearing biased is difficult. So it must avoid asking about vital issues....And it must avoid giving the jury the impression that one side should prevail....Here the district court's questioning closed a loose end that the prosecutor's questioning had left open, effectively helping a witness for the state to clarify her testimony in a manner that ordinarily would be left for the prosecutor to do. Had the court not asked the question, the state may have left an opening for Prewitt to challenge the witness's testimony either during cross-examination or closing argument.
That said, the court found that because Prewitt did not testify at trial, he failed to preserve the issue for appellate review, meaning that he had to demonstrate plain error for the court to reverse. The court did not find such plain error, and, in fairness, it also found that there would not have been prejudicial error even if Prewitt had preserved the issue for appellate review.
But what if there weren't quite so much evidence against Prewitt, and what if Prewitt could have demonstrated prejudicial error? Would the court still not have reversed based upon lack of proof of plain error? I would argue that the answer should be "no." Rule 605 does not require an objection to judicial testimony because
To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.
Wouldn't the same logic apply to a party objecting to a judge crossing the line in his interrogation of witnesses? In answering this question, note that Prewitt was acting pro se, meaning that he would have been questioning whether the judge crossed the line in his questions.