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Calling and Interrogation by Judge, § 906.14

State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148
For Carprue: Stephanie G. Rapkin


¶39 … (A)ppellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning ….

¶40 … We have always recognized judicial authority to call and interrogate witnesses but simultaneously admonished caution against judicial abuse. …

¶41 The struggle for balance appears again in State v. Nutley, 24 Wis. 2d 527, 129 N.W.2d 155 (1964), overruled on other grounds by State v. Stevens, 26 Wis. 2d 451, 463, 132 N.W.2d 502 (1965). … In the conflicted manner typical of decisions in this area, we reasoned: “While the court cannot function as a partisan, it may take necessary steps to aid in the discovery of truth.” Id.

¶42 In State v. Asfoor, the tension between the competing interests was very apparent. … The court concluded that the jury was not improperly influenced by “any action” of the court, and therefore rejected the defendant’s bias claim. Id.

¶43 Over the years, this court has demonstrated particular concern about the impression that judicial questions might convey to a jury. …

¶44 The opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates, State v. Garner, 54 Wis. 2d 100, 104, 194 N.W.2d 649 (1972), or betray bias or prejudice, State v. Driscoll, 263 Wis. 230, 238, 56 N.W.2d 788 (1953), or engage in excessive examination, Breunig v. American Family Insurance Co., 45 Wis. 2d 536, 548, 173 N.W.2d 619 (1970), particularly in front of juries. Last term, we reversed a conviction after a suppression hearing in which a circuit judge crossed the line of propriety. State v. Jiles, 2003 WI 66, ¶39, 262 Wis. 2d 457, 663 N.W.2d 798 (“The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander.”).

This discussion on judicial intervention arises in the context of discussion on waiver due to lack of objection. It seems clear, though, that the court is sending a message about judicial intervention – which in this instance involved a judge outside the jury’s presence more or less suggesting to the State a fruitful attack on Carprue’s credibility. ¶¶17-26. The court is clearly perturbed by this activity (¶1: “prudence would have counseled less assertive conduct from the circuit judge”; ¶3: “The State argues, and we agree, that … the circuit judge’s actions were inadvisable”; ¶69: “Judge Schellinger’s conduct, while unusual and not recommended”), and as the quotes above indicate, the court does not want trial judges to abuse the authority provided by § 906.14. That this imprudent, inadvisable, unusual activity occurred outside the jury’s presence is therefore probably crucial (“judges must not function as partisans or advocates … particularly in front of juries”). Indeed, the court goes on, in discussing whether counsel was ineffective for not objecting to this intervention, to hold that no prejudice accrued precisely because “none of the information disclosed [by the intervention] was ever presented to the jury,” ¶50. As the court further explains, it doesn’t want “to overreact to this situation in the absence of any discernible harm to Carprue,” ¶67 – harm that might well have been discernible had the judge’s actions occurred in front of the jury. Finally, the court’s reference to Jiles should be seen as the exception that proves this rule: though not explained in these terms, by citing Jiles with unreserved approval, the court can only mean that when the judge displays partisanship while acting as a fact-finder it is simply irrelevant that the jury isn’t present.For an instance of impermissibly intrusive judicial involvement, violating defendant’s due process right to fair trial, see Wallace v. Bell, 387 F. Supp. 2d 728 (E.D. MI. 2005 (“the trial judge trenched onto forbidden territory when he called and questioned an unlisted expert witness in violation of his own sequestration order who bolstered the prosecution’s DNA witness”). And for a perhaps even more extreme example, where the judge’s intrusion went so far as to be in the nature of witness testimony, in violation of FRE 605 (equivalent of § 906.05), see U.S. v. Nickl, 10th Cir No. 04-3499, 11/1/05. See also U.S. v. McCray, 7th Cir No. 05-1412, 2/9/06:

Although we conclude that this defendant was not prejudiced by the district court’s inquiry, we express some concern over the judge’s decision to proceed with extensive questioning. When coupled with the trial court’s practice of not permitting sidebars, the judge’s questions in this case arguably placed the defendant’s lawyer in an awkward position. Defense counsel was faced with either passively accepting what he perceived to be an unwarranted examination or potentially exacerbating the situation by challenging the judge’s impartiality in front of the jury. To avoid the risk of unforeseen prejudice, we encourage district judges to remain vigilant to the potential impact of their questions during a jury trial.

Similar effect: Smith v. State, Md. Ct. Spec. App. No. 614, 10/6/08 (reversible, where “trial court’s persistent questioning here, however well-intentioned, risked suggesting to the jury that the trial court wanted to elicit facts that fit into a distinct timeline that favored the State’s case”); People v Melendez, 2006 NY Slip Op 04336, 6/1/06 (judge’s function is to protect not make record at trial, hence impermissible to appear to be advocate; though trial judge didn’t commit reversible error, appellate court expresses disquiet at “the trial judge’s overly intrusive involvement in the questioning of witnesses and undue interference in the orderly presentation of proof”). Also: Lyell v. Renico, 6th Cir No. 04-1106, 12/1/06 (habeas relief granted due to judicial intervention amounting to bias, court observing: “Difficult as this standard may be to reach, the trial judge seemingly made every effort to satisfy it.”); State v. Thompson, WVA SCt No. 33097, 5/15/07 (judicial questioning amounted to plain error).

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