EvidenceProf Blog

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

Tuesday, January 26, 2021

First Circuit Finds Judge Committed Reversible Error by Saying Defense Witness's Testimony Was Irrelevant

It is well established that a judge "weighing in on witness credibility amounts to 'per se misconduct.'" United States v. Raymundí-Hernández, 2020 WL 7706932 (1st Cir. 2020). But what about a judge weighing in on witness relevance? That was the question addressed by the First Circuit in Raymundí-Hernández.

In Raymundí-Hernández, Carlos Raymundí-Hernández, Rocky Martínez-Negrón, Edgar Collazo-Rivera, and Jovanni Varestín-Cruz were convicted by a jury after an eleven-day trial for their roles in an expansive drug-trafficking conspiracy. At trial,

The defense's principal trial strategy was to impeach the credibility of cooperating witnesses Pérez-Colón and Marrero-Martell, whose testimony constituted the overwhelming bulk of the potentially incriminating evidence put to the jury. Varestín called Dávila-Reyes in service of this theory. At the time of his testimony, Dávila-Reyes was imprisoned on prior unrelated gun and drug charges. Varestín posited that Dávila-Reyes's testimony was especially trustworthy because, unlike the cooperating witnesses, he was not offered (nor did he expect) a sentencing benefit in exchange for taking the stand. Of particular note, Dávila-Reyes testified that, while imprisoned in the same unit, the government's cooperating witness Pérez-Colón offered him money “[t]o give false information to be used as testimony against other people.” Specifically, Dávila-Reyes stated that Pérez-Colón inquired about “whether [Dávila-Reyes] knew of any violent crime committed by [Torres-Estrada] and his gang,” including Varestín. Dávila-Reyes recalled that Pérez-Colón implied that he would take what information Dávila-Reyes could provide and “bulk it up.”

Subsequently, while the prosecutor was asking Dávila-Reyes about the origins of his drug supply in relation to his prior drug offenses, the following exchange took place:

VARESTÍN: Objection, Your Honor. First of all, beyond scope. Second of all, the government is eliciting information that is not relevant to this trial, Your Honor.
THE COURT: His testimony also is not relevant in this case.
VARESTÍN: Well, Your Honor, we differ, obviously, but I believe his testimony is relevant.
THE COURT: Counsel, he's accepted that he dealt in drugs. The question is, where did you get the drugs? If he says it was his own drugs, does that mean he grew them up in his back yard, or where did he get the drugs? That's the only question.

In finding this to be reversible error, the First Circuit concluded that

We have previously noted that adding to the evidence by weighing in on witness credibility amounts to “per se misconduct” (i.e., per se appearance of bias)...based on the Supreme Court's decision to reverse in Quercia, where the trial judge added to the evidence by expressing his opinion to the jury that the defendant's body language while on the witness stand indicated that he was lying....Distorting the evidence is similarly problematic from the standpoint of signaling bias,...especially when the distortion impacts a critical issue such as the reliability of the testimony offered by three cooperating witnesses, which in this case was instrumental to the government's case against the defendants. The trial judge's relevance comment did just that, “put[ting] his own experience, with all the weight that could be attached to it, in the scale against the accused.”...The off-hand comment, which did not serve “to assist the jury in reaching the truth,”...signaled to the jury that they should disregard Dávila-Reyes's crucial and quite relevant defense evidence as not relevant. By undermining Dávila-Reyes's testimony in this manner, the judge's comment also undermined the defense theory that the cooperating witnesses each had a motive to lie.



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