EvidenceProf Blog

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

Wednesday, April 15, 2015

Judgy: 7th Circuit Finds No Problem With Judge's 11 Minute Interrogation of Defense Expert During Sentencing

Federal Rule of Evidence 614(b) provides that

The court may examine a witness regardless of who calls the witness.

That said, such examination is improper if the judge abandons neutrality and becomes something in the way of an advocate for one of the parties. If a judge engages in a 11 minute interrogation of the defendant's expert witness in a way that mimics a cross-examination, has this line been crossed? Let's take a look at the recent opinion of the Seventh Circuit in United States v. Modjewski, 2015 WL 1610497 (7th Cir. 2015).

In Modjewski, the defendant was convicted of of three counts of possession and transportation of electronic child pornography. At sentencing, the defendant "presented the testimony of a psychiatric expert during his sentencing hearing in hopes that it would reduce his sentence for possession and delivery of an extremely large amount of child pornography."

After the expert was questioned during direct and cross-examination, the judge interrogated him for eleven minutes in a manner that mimicked cross-examination. These questions were mostly directed toward challenging the expert's claim that the defendant was not a pedophile.

After the judge sentenced the defendant to fifteen years incarceration, the defendant appealed on the ground that the judge morphed into an advocate for the prosecution through her questioning. In response, the Seventh Circuit noted that

A judge may examine a witness....However, she abuses that authority when she "abandons [her] proper role and assumes that of an advocate."

That said, the court pointed out that "[o]ne of the main reasons that such questioning can be prejudicial is that it can influence the jury" and that 

Here, there was no jury, and "in non-jury proceedings, questioning by the judge will rarely be prejudicial to the defendant."...Moreover, many of the formalities that come with a criminal trial are relaxed in sentencing.

Moreover, the Seventh Circuit held that

While the tone and content of the judge's questions read somewhat like a cross-examination, it is the judge's role to fashion a sentence based on information with a sufficient in-dicia of reliability....The judge also plays the role of the "gatekeep[er]" when it comes to expert evidence, ensuring that it "both rests on a reliable foundation and is relevant to the task at hand."...At times a determination of reliability will call for lengthy questioning and, at others, for direct questions (if for no other reason than efficiency)....Here, there were eleven minutes of mostly to-the-point questions. Yet the sheer volume of questions cannot per se show the questioning is improper since there is no principled way to determine how many questions are sufficient or excessive, whether the judge was required to ask more as a result of an uncooperative witness, and so forth....[The defendant] has not presented compelling evidence that the judge reached that level by asking a large number of direct questions while determining which evidence was reliable.



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Wow. Just wooow. After reading the blurb I fully expected to agree with the court and then I read the opinion and that judge was waaaaay out of line. I also think the appeals court fundamentally misunderstands Daubert. I hope that this gets appealed further.

Posted by: Daniel | Apr 15, 2015 3:02:31 PM

I have to say that I agree with Daniel. I also hope this gets appealed further.

Posted by: Elaine | Apr 16, 2015 5:55:58 AM

It was an interesting move by the judge to essentially take judicial notice of the fact that the defendant was a pedophile based on the judge's own treatise.

Posted by: Josh Stern | Apr 17, 2015 10:48:19 AM


Bingo. That is what blew me up too. She doesn't have to believe the expert if she doesn't want to...that's a credibility determination. But when she started invoking the DSM5 she went beyond finding the other expert incredible and became the expert herself. In my view that is where she stepped out of line. Is she a qualified medical professional? A psychologist? Even a LPC? No. So her reading of the DSM5 should be legally null.

The judge can have an opinion on legal matters--that's her job. But it is not her job to have opinions on professional areas outside her expertise.

Posted by: Daniel | Apr 17, 2015 2:18:11 PM

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