Judge, Jury, And Interrogator — Court-Martial Trial Practice Blog

Is how one of my favorite evidence blog prof’s describes a First Circuit case. I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article.

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let’s consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).

And here is how Professor Miller concludes the practical question of what to do rather than what’s the rule.

If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on.

But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don’t see why an objection to judicial interrogation is required by an objection to judicial testimony is not.

Peter E. Brownback III says:

September 9, 2010 at 4:03 pm

I am not sure from your post whether or not you agree with the final two pararaphs in the post.

I most strongly disagree with Professor Miller on the point he attempts to make. First, if the MJ is testifying, then the record is complete at that time. While the MJ may go back and attempt to clean up the record, either sua sponte or after having the matter brought to his attention by counsel. the MJ is not and can not be a witness in the case before him (obscure and extremely unusual circumstances not being present). Therefore, the issue is simply 1. Unlawful testimony was brought before the court. 2. Determine if the unlawful testimony could have had an effect upon the findings/sentencing.

Second, though, an MJ is always allowed (Praise Article 46.) to ask questions. If counsel for either side (I have had trial counsel complain about my questioning of a witness or my calling of witnesses.) believes that the MJ is going beyond her/his proper role, the counsel has a duty to object – point out to the MJ what counsel believes is incorrect. Until counsel object, then only the most egregious plain error deserves to be recognized on appeal.

If counsel does not object in an attempt to leave in the record what one MJ has called an appellate hand grenade, then counsel should not get the benefit of the failure to object on appeal.

Perhaps matters are different in those jurisdictions in which Professor Miller practices. However among the military judges whom I have known, an objection by counsel is not seen, usually, as an attack upon the integrity of the MJ. I can not speak for counsel and judges in the civilian arena.