EvidenceProf Blog

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

Monday, February 18, 2013

Structural Integrity: District of Minnesota Finds Judicial Testimony is Not Normally Structural Error

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

But while a party does dot need to object to a judge's testimony to preserve the issue for appellate review, is judicial testimony normally structural error necessitating a new trial without a showing of actual prejudice? According to the recent opinion of the United States District Court for the District of Minnesota in Kachina v. Roy, 2012 WL 6965116 (D. Minn. 2012), the answer is "no."

In Roy, Gary Allen Kachina was convicted of receiving stolen property.

At trial, the district court allowed evidence of [Kachina's] 2004 burglary because it believed the State's evidence on the element of Petitioner's intent was weak....The court also believed that evidence of the 2004 burglary showed Petitioner acted with a common plan....Petitioner objected, asserting the evidence of his intent was not weak and the 2004 burglary evidence was more prejudicial than probative....The district court ruled that the evidence's probative value outweighed any potential prejudice to Petitioner....The court then permitted the transcript of a witness to the 2004 burglary to be read to the jury....The district court gave a limiting instruction prior to admitting the transcript and again at the close of trial....The jury heard testimony from the 2004 burglary trial about a man being found inside a home....The district court clarified that the testimony was referring to Petitioner....The court explained: "the person that [the witness] was talking about as it relates to the event on May [10,] 2004...[is] Mr. Kachina."...Petitioner objected to the judge's statement and was overruled.

Kachina thereafter filed a habeas petition in federal court, claiming that the judge's statement was improper because, inter alia, it constituted improper judicial testimony under Federal Rule of Evidence 605. The District of Minnesota, however, found that, even if the judge's statement were judicial testimony, the admission of such testimony is not normally structural error:

[V]iolations of Federal Rule of Evidence 605 normally do not rise to the level of structural error.

Rule 605 of the Federal Rules of Evidence states that a judge may not testify at trial as a witness....In Berber–Tinico, the defendant claimed a "judge's interjections in violation of Rule 605 destroyed the court's image of impartiality and thus violated a defendant's constitutional right to an unbiased trial judge."...The Ninth Circuit held, however, that "a Rule 605 error, without more, does not rise to the level of a structural constitutional error."...The court instead applied the harmless error standard and found that, although the judge violated Rule 605, there was "no serious concern here that the judge's comments and personal knowledge influenced any aspect of the trial or hearing...."...Even assuming the trial judge's comment violated Rule 605, a suspect conclusion in itself, the clarifying comment was harmless.



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