EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 16, 2012

I Rest My Case: Arkansas Judge Calls For Additional Witnesses After Both Sides Have Rested In Child Custody Case

Similar to its federal counterpartArkansas Rule of Evidence 614(a) provides that

The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.  

The recent opinion of the Court of Appeals of Arkansas in Cowan v. Arkansas Dept. of Human Services, 2012 Ark. App. 576 (Ark.App. 2012), raises an interesting issue under Rule 614(a): Should the court be able to call additional witnesses after all parties have rested their respective cases?

In Cowan, James and Pauline Cowan appealed from the order of the Craighead County Circuit Court dismissing their petition to adopt seven-year-old E.C. At the conclusion of the hearing on the Cowans' petition to adopt E.C.,

the circuit court stated that it faced a difficult decision and that it was concerned about the lack of direct evidence concerning the allegations from E.C.'s prior school that had been noted in the petition for emergency custody. The court found that the hearing should be continued until January 2012 so that the parties could procure witnesses from the school that had first-hand knowledge of E.C.'s situation when she lived with the Cowans. The court also ruled that the parties would be able to cross-examine these additional witnesses and to call rebuttal witnesses if they desired. The Cowans strenuously objected to the court's ruling, arguing that both parties had rested and that the court did not have the authority to call for additional evidence. The court overruled the objection, stating that it did have the authority to do so under the plain language of Ark. R. Evid. 614 and that the additional evidence was necessary for the court to decide what was in E.C.'s best interest in this case. Although the court admitted that it did not have knowledge of the specific witnesses that should be called, it suggested that the principal of the school would be a good place to start.

After the circuit court denied the Cowans' petition to adopt E.C., the Cowans appealed, claiming, inter alia, that the court could not call witnesses after both parties had rested their cases. The Court of Appeals of Arkansas disagreed, finding that

the Cowans...cite no authority for their contention that Rule 614 is not applicable where the parties have rested their cases. In fact, in one of the cases cited in their brief, Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995), our supreme court noted that a case-in-chief may be reopened for the taking of additional evidence and that such a matter is committed to the discretion of the trial court. Further, in Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972), the court stated that the reasons for restraint upon the trial judge are minimal where the judge is the trier of fact and that his responsibilities for elicitation of all pertinent facts are increased. Thus, the trial judge has "the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed."... properly developed."...

The court then concluded that

This was precisely the circuit court's concern in this case, as it had not heard any testimony from witnesses with first-hand knowledge of the allegations made in the FINS petition. As the court noted in response to the Cowans' objections at the hearing, its ruling would have been different had the case been one for dependency-neglect, where DHS has the burden of proof. In that situation, the court stated that it would have dismissed DHS's case for insufficient evidence. However, this case involved the adoption of E.C., and the overriding concern of the circuit court in such cases is determining what is in the best interest of the child....Thus, it was well within the circuit court's discretion to request that additional evidence be submitted.

Given that Cowan was a child custody case, I don't have a problem with the court's conclusion. I am, however, confused by the court's citation to Hillard v. State. In Hillard, the court pointed out that a court may allow the prosecution to re-open its case-in-chief after the prosecution has rested. The court, however, did not say that the judge may call witnesses for the prosecution after the prosecution has rested. Indeed, this would make no sense because the judge calls his own witnesses under Rule 614 and cannot call witnesses for the prosecution or witnesses for the defense. 

So, should a judge be allowed to call witnesses after the prosecution in a criminal case has rested or after both the prosecution and the defense have rested in a criminal case? Given 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. I suppose there are cases in which there is not reasonable doubt and in which the court could call witnesses who would establish reasonable doubt. But I would think that in the overwhelming majority of cases, the court would call witnesses under these circumstances because of a lingering reasonable doubt.



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I don't agree Colin. To my mind the animating principle here is that the court not be used as a sham. While it strikes me as a rather rare situation one could imagine where the defense and the prosecution are in cahoots such that the charges are brought and then not fully prosecuted so that later on the defendant can claim double jeopardy. In that situation the trial is a sham trial and the court is being expected to give its legal stamp of approval to a sham. In essence the rule is there as a ultimate safeguard when the "advocacy of opposites" breaks down, which it seems to have done in this case.

So yes, a judge should be able to call witnesses after the prosecution has rested. I think it would be an extremely rare situation but not an inconceivable one.

Posted by: Daniel | Oct 16, 2012 1:49:26 PM

The judge has no crystal ball with which to determine that neither party will call those witnesses who would provide the necessary testimony to fully develop the evidentiary record until both have rested their cases. Thus, it would be premature for the judge to interfere with the parties' development of the evidence until that point. Until the parties have both rested, the judge cannot determine in what ways the evidentiary record is incomplete. If the judge continually interrupts the parties' presentation of the evidence by calling additional witnesses throughout the trial, or decides in advance additional witnesses to call, the record may still be incomplete at the conclusion of the parties' presentations. I would think the disruption, particularly if a jury were sitting, would be far greater than any detrimental effect (and I have seen none described) of adducing additional testimony after both parties have rested and any gaps in the record can be more clearly identified.

Posted by: David R Gipson | Oct 16, 2012 2:33:22 PM

Daniel and David: These are both fair points, and my mind is certainly not made up about the issue. Let's look at the Advisory Committee's Note:

"Subdivision (a). While exercised more frequently in criminal than in civil cases, the authority of the judge to call witnesses is well established. McCormick §8, p. 14; Maguire, Weinstein, et al., Cases on Evidence 303–304 (5th ed. 1965); 9 Wigmore §2484. One reason for the practice, the old rule against impeaching one's own witness, no longer exists by virtue of Rule 607, supra. Other reasons remain, however, to justify the continuation of the practice of calling court's witnesses. The right to cross-examine, with all it implies, is assured. The tendency of juries to associate a witness with the party calling him, regardless of technical aspects of vouching, is avoided. And the judge is not imprisoned within the case as made by the parties."

So, it looks like the Rule was mainly a response to the common law voucher rule, which is no longer in place. The remaining rationale is to prevent the judge from being "imprisoned within the case as made by the parties." That's a decent rationale, but I still have a problem with its application in criminal cases.

Again, I have nothing empirical on this front, but I'm guessing that judges overwhelmingly use Rule 614(a) in criminal cases when they think that reasonable doubt exists. I suppose that there could be cases that look like slam dunks for the prosecution in which the judge calls additional witnesses who create reasonable doubt. But I'm guessing that judges predominantly call additional witnesses when something is uncertain, with that uncertainty being reasonable doubt. And I'm a bit uncomfortable with judges using their Rule 614(a) to remove that reasonable doubt.

Posted by: Colin Miller | Oct 16, 2012 5:21:34 PM

Here's an interesting excerpt from State v. Parr, 534 S.E.2d 23 (W.Va. 2000), that I will address in a future post:

Mr. Parr concedes that the trial court had authority to call Mark, but argues that the trial court was limited to calling Mark before the State concluded its case. In support of this contention, Mr. Parr cites to our decision in State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 (1955), wherein we held that “[a] trial judge has the right, and in some instances the duty, to call witnesses to testify, but such witnesses should be called before the state and the defendant have closed their evidence.” Mr. Parr seeks to place an interpretation on Loveless that we refuse to adopt.

The decision in Loveless does not preclude trial courts from calling witnesses after the State or defendant has rested. As was noted by Professor Cleckley in his interpretation of Loveless, calling a witness by the trial court “after the parties have rested must be sparingly used.” Franklin D. Cleckley, Vol. 1, Handbook on Evidence for West Virginia Lawyers § 6–14(D) (1994). We have previously noted that “[a] trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case.” Syl. pt. 4, in part, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).

Posted by: Colin Miller | Oct 16, 2012 5:27:33 PM

Admittedly, when I posted my comment my thoughts had drifted more to civil matters in which the judge is and will be seen as a neutral arbiter, as the state rarely will have more than a passing interest in the outcome of such cases.

In a criminal case, on the other hand, the state is a party with an overriding interest in the outcome. While we would like to think that judges are in fact neutral in such matters, a post-closing intervention by the judge, who is after all a state actor just like the prosecutor, that heavily favors the prosecution will at least give the appearance of the state piling on and undermine the court's credibility as a neutral party interested in only the truth. To that extent, I concur that such instances can be troubling.

If the opportunity for cross-examination is insufficient in such situations, when the witnesses called tend to bolster the prosecution, would the answer be to allow the defense leeway to reopen their case anytime a judge calls additional witnesses after closing? After all, a post hoc appellate determination that the intervention prejudiced the defendant's case is inefficient and likely to cause defendants the irreparable harm of incarceration while awaiting appeal. Appellate courts these days seem to find all sorts of what I see as significant errors to be "harmless," so every opportunity to avoid prejudice at the trial level is to be encouraged.

An interesting conundrum. Thanks for posting this and for replying to my comment.

Posted by: David R Gipson | Oct 19, 2012 6:06:21 AM

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