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?

-CM