Judge Me Not: Court Of Appeals Of Kentucky Finds Problems With Judicial Research, Comment

Like its federal counterpart, Kentucky Rule of Evidence 605 provides that

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.

As the recent opinion of the Court of Appeals of Kentucky in Whitlock v. Haney, Sr., 2012 WL 2012 WL 163024 (Ky.App. 2012), makes clear, however, Rule 605 covers not only actual judicial testimony but also improper judicial research and improper judicial comment.

In Whitlock, Arthur Whitlock appealed from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Specifically, Whitlock claimed that

the trial court considered evidence outside of the record when granting the directed verdict. The trial judge noted that she had been present at the time when the criminal charges against Whitlock were dismissed, and she took exception to the manner in which Haney and his counsel characterized that dismissal. The trial court also noted that Whitlock appeared before the grand jury after the dismissal of his charges. Following that appearance, the grand jury indicted Haney for perjury, but that charge was also dismissed prior to trial. Whitlock contends that these matters were outside of the evidence presented at trial and were therefore not proper for the court to consider.

In response, the Court of Appeals of Arkansas began by noting that "[t]rial courts may take judicial notice of court records of the same court when the records concern the same parties and the same issues." That said, the court then noted that "[t]he trial court's observations about the circumstances about the dismissal of the charges against [Whitlock] are problematic because they implicate the trial judge as a witness. Kentucky Rules of Evidence (KRE) 605." Nonetheless, the court concluded that

while the trial judge noted that her recollection of these events conflicted somewhat with Whitlock's account, the judge stated that her memory confirmed Whitlock's central argument – that the theft charges were dismissed due to lack of evidence. Thus, Whitlock was not prejudiced by the trial court's consideration of this evidence.

The court then found, though, that

On the other hand, the trial court's statements about Whitlock's appearance before the grand jury and the perjury charge against Haney merely involved matters within the court's record. We question whether it was appropriate for the court to speculate about the content of Whitlock's grand jury testimony, since no evidence was entered about that proceeding. The tone of the court's comment suggests, without any foundation, that Whitlock may have given false testimony to the grand jury. Trial courts should avoid such gratuitous speculation. Nevertheless, the trial court's opinion does not suggest that it considered this speculation in its probable cause determination about the charges against Whitlock. Therefore, the inclusion of the comment was, at most, harmless error. On remand, however, we would suggest that the trial court avoid such comments.

-CM