EvidenceProf Blog

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

Thursday, September 30, 2021

Tenth Circuit Finds That Judge's Statement to Jury That Contradicted Defendant's Testimony Violated Rule 605

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.

Rule 605 covers not only literal testimony but also the functional equivalent of testimony. One such example can be found in the recent opinion of the Tenth Circuit in United States v. Andasola, 2021 WL 4166671 (10th Cir. 2021).

In Andasola

[Jose] Andasola's convictions aro]se from a February 2017 drug deal. The evidence at trial established that a few days before the deal, an FBI informant called Andasola, asked to buy three ounces of heroin, and planned to meet up with Andasola later in the week. During this call and others, Andasola discussed the product he was selling using coded language, referring to it by other terms, including “cars,” “horses,” and “cheese.” But video footage from a hidden camera worn by the informant to the drug deal revealed that Andasola was not selling such items—he was selling heroin and methamphetamine.
In the video, Andasola arrives at the agreed location just off a highway exit. Wearing a checkered shirt, Andasola enters the informant's car for a short conversation about drug quantities and prices. Then the two men drive separately to a second location on a rural road. Next, the video shows Andasola leaving his truck and riding in the informant's vehicle to a third and final location.
 
During the drive, Andasola reassures the informant that changing locations would avoid problems and be safer. The two men again discuss drug prices and quantities using coded language. For instance, the informant asks Andasola how much crystal he has with him, and Andasola says he has “two” (referring to two pounds of methamphetamine)....Andasola then asks the informant if he wants to buy the two or only the heroin, which he refers to with the code word “black.” He also later confirms that the informant wants the two pounds of methamphetamine.
 
At the third location, the video shows the informant stopping his car on a rural road as an approaching green SUV driven by an unidentified man does the same. Andasola would later admit that he owned the green SUV. The video shows Andasola sitting in the passenger seat and talking to the informant. Although the camera view does not actually show Andasola exiting the informant's vehicle, the sound of a car door opening can be heard. And then a person whose face isn't visible to the camera but who is wearing the same checkered-pattern shirt as Andasola removes foil-wrapped packages from the SUV and hands them through the driver's door to the informant. After the informant places the packages on the passenger seat, the camera view shifts back to the driver's side window, where Andasola is briefly seen standing. Andasola then leaves with the unidentified man in the green SUV.
The informant delivered the packages to an FBI agent. When eventually weighed and tested, these packages held about two pounds of methamphetamine and half a pound of heroin. Three weeks later, in another recorded meeting with the informant and an undercover agent, Andasola collected payment for the earlier drug deal and discussed prices for future deals.

At trial, Andasola testified that the video the prosecutor showed to the jury had been altered. This led to a sidebar, during which the prosecutor said there was only one version of the video. The judge then "instructed the jury 'that there is only one video that exists in this case. That video has been labeled as Government Exhibit 14. To the extent there was any implication that another video exists, that is not an accurate statement. There is only one video.'"

After he was convicted, Andasola appealed, claiming that the judge's instruction violated Rule 605.

[T]he government “agrees[d] that [it] was legal error” for the district court to instruct the jury that only one video existed....At the same time, the government paradoxically disagree[d] that this conceded legal error violated Rule 605, insisting that “[i]t stretches the text of Rule 605 to suggest that the instruction here amounted to testimony from the judge as a witness.”...But the district court violates Rule 605 when it “add[s] to” the record evidence....And here, after Andasola testified that the video had been altered, the district court-rather than holding the government to its burden to introduce contrary evidence-“simply instructed the jury that, in fact, there was no other video.”...Thus, the district court introduced new evidence to the jury by deciding a disputed factual issue for the jury, in violation of Rule 605.

That said, the court concluded that this error was harmless.

-CM

https://lawprofessors.typepad.com/evidenceprof/2021/09/federal-rule-of-evidence-605-provides-that-the-presiding-judge-may-not-testify-as-a-witness-at-the-trial-a-party-need-not.html

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