EvidenceProf Blog

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

Saturday, October 27, 2012

I Rest My Case, Take 5: Supreme Court Of West Virginia Allows For Additional Evidence After Start Of Closing Arguments

Recently, I have written several posts about whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts. In one of those posts, I discussed two West Virginia cases. In the first of these cases, State v. Loveless, 534 S.E.2d 23 (W.Va. 1955), the Supreme Court of West Virginia reversed a conviction, finding that

witnesses were called after the state and the defense had rested their cases. The introduction of these two witnesses at this stage of the trial was untimely and constitutes another valid objection to the action of the trial court. These witnesses should have been called before the state or the defense had concluded the introduction of testimony to sustains ths issue on their respective parts. This record discloses that the trial judge, though having a right to call Sherman and Jones as witnesses, should not have examined them to the extent he did and in the manner he did. Nor should such witnesses and their testimony been used after the state and the defense had rested their case. Such action of the trial court constitutes reversible error.

Later, in State v. Parr, 534 S.E.2d 23 (W.Va. 2000), the West Virginia Supremes retreated from this position a bit, concluding that

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." 

So, what did the same court recently do in In re T.H., 2012 WL 5205673 (W.Va. 2012)?

In T.H., a mother appealed from an order wherein her parental rights to the children, T.H., D.E., and D.H., were terminated. At the subject proceedings, the mother and the West Virginia Department of Health and Human Resources ("DHHR") both rested after presenting both evidence and testimony. Then, the DHHR began its closing arguments. In the middle of these closing arguments, the judge interceded and decided to reopen the evidence so that additional medical evidence of T.H.'s injuries could be introduced.

After he parental rights were terminated, the mother appealed, claiming that the judge erred in reopening the evidence after both sides had rested and the DHHR had begun its closing arguments. The Supreme Court of West Virginia disagreed, concluding that

Upon review of the record, we find no error in the circuit court's decision to continue the adjudicatory hearing in order for the DHHR to present medical evidence of D.H.'s injuries, despite the fact that the DHHR had already rested. As noted above, Rule 614 of the West Virginia Rules of Evidence allows circuit courts the discretion to call witnesses on its own motion. Further, at adjudication, petitioner's own counsel admitted that testimony related to the child's medical records would tend to shed more light on the nature and extent of the subject child's injuries.

Moreover, the court noted that the paramount consideration in a child custody case is the best interest of the children and thus found that the judge's actions were proper because they were "clearly in the children's best interest."

I see the court's point and, as noted in a previous post, I don't necessarily disagree with the proposition that judges should be able to call additional witnesses after both parties have rested in a child custody case? But what about after closing arguments have started? Or what about after the State has finished its closing argument? If the judge thinks that the State hasn't satisfied its burden of proof after its closing argument, should he be able to call additional witnesses? Or what about after the defense has finished its closing argument? If the judge thinks that the defense has sufficiently rebutted the State's case in closing, should the judge be able to call additional witnesses?

To me, this represents one of the problems with judges being able to call witnesses after both sides have rested: the slippery slow. Normally, I'm one who is very skeptical of slippery slope arguments. But it seems to me that there is a very clear progression (regression?) from Loveless to Parr to T.H. First, the Supreme Court of West Virginia per se precludes judges from calling witnesses after both sides have rested. Then, it recognizes that judges can engage in this practice but should do so sparingly. Then, it allows the practice even after closing arguments have started. Where does it end?



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To my mind the judge does not merely preside over a set of cases as presented by the parties but over the trial as a whole. The cases by the defendant and the prosecution are merely tools to help the judge or the jury arrive at its decision. If the judge feels that those tools are inadequate to reach a decision then his duty to the trial itself demands he asks more. Because our system of law is an adversarial system the presumption should be that in the ordinary cases the party's cases (viewed as tools) are effective in presenting the necessarily information to reach a decision but that shouldn't exclude the rare situation where the system breaks down.

Honestly, CM I think you are finding a bogey man where there isn't one. Whatever the logical and philosophical debates I simply don't sense that this is an issue that raises to the level of public concern; you haven't presented any evidence that the power given to judges in this regard is being abused. Sure, I would be alarmed if I saw a trend where judges were using their power in this regard to take on the role of judge as prosecutor in the vein of a system like Spain. You haven't presented any evidence of that though.

Posted by: Daniel | Oct 27, 2012 9:56:39 AM

Daniel: We might agree that this is not a huge problem. But here's the thing: What's the test? Courts consistently say that courts should only use the Rule 614(a) power "sparingly" after the parties have rested. This begs two questions:

(1) What informs when judges should infrequently invoke their Rule 614(a) power? Under Rule 614(b), courts consistently say that judges should exercise their power to interrogate witnesses in a way that does not transform them from neutral aribter to partisan advocate. Does this same test apply to Rule 614(a)? Should a judge be allowed to call new witnesses after the parties have rested because the judge still thinks that there is reasonable doubt? Does that make him an advocate? Should the judge use his Rule 614(a) power in this context only to resolve ambiguities rather than to create them?

(2) When does the power end? At the close of the evidence but before closing arguments? During closing arguments? At any point before the case is submitted to the jury?

Posted by: Colin Miller | Oct 27, 2012 1:46:15 PM

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