I Won't Be The Judge Of That: Texas Appeal Reveals That The Lone Star State Doesn't Allow For Judicial Interrogation

The recent opinion of the Court of Appeals of Texas in Clark v. State, 2009 WL 857607 (Tex.App.-Deaumont 2009), reveals that, unlike the Federal Rules of Evidence, the Texas Rules of Evidence do not allow for judicial interrogation of witnesses. And while I disagree with the Texas approach, I think that it tells us something important about the role of the judge at trial.

In Clark, Nathaniel Dywane Clark appealed from his conviction for murder. One of the grounds for Clark's appeal was that the trial judge improperly interrogated two witnesses, an officer who testified regarding the scene of the crime and a ballistics expert. And he was right. The Court of Appeals of Texas noted that while Federal Rule of Evidence 605 precludes testimony by judges in cases over which they are presiding because it make make them look partial, Federal Rule of Evidence 614(b) indicates that "[t]he court may interrogate witnesses, whether called by itself or by a party." But the court also noted that while Texas does have a state counterpart to Federal Rule of Evidence 605, it does not have a state counterpart to Federal Rule of Evidence 614(b) because "[i]t would be almost impossible for the court to take part in the examination of witnesses without impressing the jury with the belief that the court believed or disbelieved the testimony of the witnesses, whether the court intended to make such an impression or not."  

Now, this is certainly an extreme position. I think that most people would agree that judges should at least be able to ask some questions to witnesses, and as far as I know, Oregon is the only other state that does not allow for judicial interrogation. But I'm not going to argue with the Texas position because I think that the Lone Star state is correct that judicial questioning can give off the appearance of judicial bias (or show actual judicial bias). I just think that Texas applied the wrong part of  Federal Rule of Evidence 605 to judicial interrogation.

You see, Clark did not object to the judge's interrogation of the two witnesses, so the Court of Appeals of Texas found that he had not preserved the issue for appeal. Therefore, the court could not have reversed for abuse of discretion and could only have reversed for plain error, which it did not find because "[n]one of the trial judge's questions to the witnesses in front of the jury in this case tainted the defendant's presumption of innocence or suggested partiality."

So, what do I mean when I say that Texas applied the wrong part of  Federal Rule of Evidence 605 to judicial interrogation? Well, there are two parts to Federal Rule of Evidence 605. The first says that judges cannot testify at trials over which they preside, and the second says that"[n]o objection need be made in order to preserve the point." As Clark makes clear, Texas precludes judicial interrogation but requires an objection to such interrogation to preserve the issue for appeal, as does Federal Rule of Evidence 614(b).

As I noted above, I think that most people would agree that judges should at least be able to ask some questions of witnesses, which is why I think that Texas wrongfully proscribes judicial interrogation. But, why does Federal Rule of Evidence 605 not require an objection to judicial testimony? Well, according to the Advisory Committee Note to Rule 605,

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 apply when a party objects to judicial questioning? Why do the Rules (both federal and Texas) require an objection to judicial interrogation but not require an objection to judicial testimony? The only justification that I can see is that while an objection to judicial testimony would lead the judge to conclude that his integrity had been attacked, an objecton to judicial interrogation would not. But I don't think that judges (would) make that distinction. But I'm sure that the issue is more complicated than that, so I have started to research the issue with an eye toward completing an article on the topic, which I will post here when it is completed.

-CM