Federal Rule of Evidence 605 and Judicial Functions

Federal Rule of Evidence 605 states that

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

Courts have held that Rule 605 prohibits presiding judges both from testifying and giving the functional equivalent of testimony. So, what constitutes the functional equivalent of testimony in this context? The recent opinion of the Tenth Circuit in United States v. Flechs, 98 F.4th 1235 (10th Cir. 2024), provides good examples of when a judge might violate or not violate Rule 605.

In Flechs, the defendant was charged with attempted enticement of a minor. At the close of the case, the judge instructed the jury as follows:

“Grooming” refers to deliberate actions taken by a defendant to expose a child to sexual material; the ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity.

“Grooming” can constitute a “substantial step.”

After the defendant was convicted, he appealed, claiming that this instruction was the functional equivalent of testimony. In response, the Tenth Circuit noted that

As one leading treatise states, “[t]he most important factor” in determining whether a court's statement triggers Rule 605 “should be whether the judge's statement is essential to the exercise of some judicial function or is the functional equivalent of witness testimony.”...“Criminal-statute elements often contain terms needing defining.”...And “courts commonly provide jury instructions that define an element's terms separate from the element itself.”

Applying this to the case at hand, the court held that

In Faust, we said that § 2422(b) “criminalizes the sexual grooming of minors, regardless of any intent to consummate the illegal sexual activity.”...The term “grooming” thus carries legal significance because we have interpreted the statute to proscribe such behavior. The district court's instruction relied in substantial part on Isabella,...and accurately restated our caselaw. It did not improperly “add[ ] to the record evidence.”...Rather, it was comparable to “provid[ing] [a] jury instruction[ ] that define[d] an element's terms separate from the element itself.”...We find Fox...persuasive. There, the Sixth Circuit rejected a challenge to a substantially similar grooming instruction because the instruction “adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision.”...The instruction thus did not violate Rule 605.

Mr. Flechs argues that our opinion in Andasola demonstrates the instruction here was erroneous. But his reliance on Andasola is misplaced. There, the judge instructed the jury: “[T]here is only one video that exists in this case....To the extent there was any implication that another video exists, that is not an accurate statement. There is only one video.”...We held the instruction was erroneous because it “introduced new evidence to the jury by deciding a disputed factual issue for the jury,” namely whether there was only one video.... The grooming instruction here added no such factual finding to the trial record and instead provided the jury a definition to aid its application of the law to the evidence.

-CM