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16.14 Conduct Of Judge

    16.14.3 Conduct Of Judge: Miscellaneous Issues And Instructions

    16.14.3.1 Summary Of Evidence By Judge
    16.14.3.2 Judge/Court Comments On The Evidence
    16.14.3.3 Court's Duty To Refrain From Improper Comment On The Evidence
    16.14.3.4 Jury Should Not Be Influenced By Court's Ruling Admitting Evidence
    16.14.3.5 No Inference From Rulings Of The Court: Cautionary Instruction
    16.14.3.6 Jury Not to Consider Conduct of Judge
    16.14.3.7 Jury Not To Consider Gestures By The Judge
    16.14.3.8 Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses
    16.14.3.9 Judge Should Not Personally Attack Attorney
    16.14.3.10 Improper To Deny Motion For Acquittal In Presence Of The Jury
    16.14.3.11 Improper For Judge To Inform Jury That Witness May Be Prosecuted For Perjury
    16.14.3.12 Judge's Comments To Defense Witness Regarding Need To Testify Truthfully
    16.14.3.13 Naming Of Witness In Instructions As Improper Comment On The Evidence
    16.14.3.14 Improper For Judge To Interfere With Jurors’ Independent Judgment

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PRACTICE NOTE: When the trial judge summarizes evidence for the benefit of the jury – for example, where highly technical expert testimony has been presented – the judge should instruct the jury that he or she is only reviewing the testimony for the jury’s benefit and understanding and that if the jury disagrees with the judge’s view, it is their recollection of the testimony that must control. (See generally NCJIC 25.3 [Charts, Summaries, Etc.]; NCJIC 16.14.3.2 [Judge/Court Comments On The Evidence];  People v. Russo (NY 1974) 362 NYS2d 191, 193.)

See A Manual On Jury Trial Procedures [3.10E Judicial Comment on the Evidence].

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    16.14.3.2    Judge/Court Comments On The Evidence

RATIONALE: Without special instruction the jury may be unduly influenced by the judge's comments on the evidence and may not understand that the jurors must decide the issues for themselves.

POINTS AND AUTHORITIES: "In the federal courts, a trial judge . . . may assist the jury by explaining and commenting upon the evidence and by expressing his opinion upon the facts, provided he makes it clear that it is for the jury alone to resolve all questions of fact." (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 442, pp. 903-04.)

    "Perhaps the most fundamental objection to this practice would relate to the judge’s failure to tell the jury that it retains the sole authority to determine the facts and is not bound by the judge’s comments." (BNA CRIMINAL PRACTICE MANUAL (Pike and Fisher, 1999) § 131.101[7].)

    If the judge comments on the evidence the jury should be admonished, both before and after the comments, that it is free to disregard the comments. (See U.S. v. Hope (11th Cir. 1983) 714 F2d 1084, 1087 ["a trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error"]; see also U.S. v. Buchanan (5th Cir. 1978) 585 F2d 100, 102; U.S. v. Musgrave (5th Cir. 1971) 444 F2d 755, 761-61; People v. Proctor (CA 1993) 4 C4th 499, 540-43 [15 CR2d 340].)

    And, even if the judge has not expressly commented, a cautionary instruction may still be appropriate.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

See Manual On Recurring Problems In Criminal Trials [3a. Comment On Evidence By Court: General Principles].

    You should keep in mind that my comments are intended to be advisory only and are not binding on you. You are the exclusive judges of the questions of fact submitted to you and of the credibility of the witnesses. You should disregard any or all of the comments, if they do not agree with your views of the evidence and the credibility of the witnesses.

[Adapted from People v. Proctor (CA 1993) 4 C4th 499, 540-43 [15 CR 340].]

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PRACTICE NOTE: "The trial court may not, in the guise of privilege, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate fact-finding power. [Citations.]" (People v. Rodriguez (CA 1986) 42 C3d 730, 766 [230 CR 667].) And, to the extent that proper judicial comment is permitted, the jury should be expressly informed that it is not bound to accept the judge's interpretation and may disregard any or all of the comments with which the jurors do not agree. (See NCJIC 16.14.3.2 [Judge/Court Comments On The Evidence]; see also People v. Lucero (CA 1988) 44 C3d 1006, 1021 [245 CR 185] [improper judicial comment on evidence].) "It is improper...for the court to single out a particular witness in an instruction, since by doing so, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]" (People v. Harris (CA 1989) 47 C3d 1047, 1099 [255 CR 352].) Moreover, a judge's comment on the evidence may also violate the state and federal constitutional right to due process and fair trial by jury. (See U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259-60.)

    See also NCJIC 286.1.7 [Judge's Post-Deadlock Comment On The Evidence May Coerce Verdict].

    See also NCJIC 34.1.1 [Consciousness Of Guilt As Improper Comment On The Evidence].

    See also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

    See also NCJIC 5.2.9 [Comment On Credibility Of Specific Witness].

    See also NCJIC 16.14.3.7 [Jury Not To Consider Gestures By The Judge].

    See also NCJIC 24.3.1.3 [Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered].

See 6th Circuit Pattern Jury Instructions - Criminal 8.09.

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RATIONALE: Without a cautionary instruction, the jury could improperly assume that the judge's rulings which allow the admission of specific matters into evidence reflect the judge's endorsement of the importance or reliability of that evidence.

POINTS AND AUTHORITIES:  See NCJIC 16.14.3.5 [No Inference From Rulings Of The Court: Cautionary Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

See 1st Circuit Pattern Jury Instructions - Criminal 1.05.

    I may rule in favor of admitting something into evidence over the objection of the other party. Such rulings are made purely on the basis of legal rules and do not reflect my view as to the credibility and/or weight of the evidence that was admitted. The credibility and weight of the evidence, if any, is solely for you, the jury, to decide.

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RATIONALE: Due to the high regard in which the jury holds the judge, there may be a danger that the jury will interpret the judge's rulings on evidentiary and other matters as indicating a preference for one side or the other. Accordingly, a cautionary instruction precluding this may be appropriate. Without instruction the jury may be inclined to draw inferences from the judge's rulings.

    See also NCJIC 297.5.1 [Argument Of Counsel Cannot Substitute For Instruction].)

    See also NCJIC 24.3.2.3 [Jury Not To Consider Any Portion Of Counsel's Opening Statement Or Closing Argument Which Was Stricken].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

See Manual On Recurring Problems In Criminal Trials [3a. Comment On Evidence By Court: General Principles].

See 1st Circuit Pattern Jury Instructions - Criminal 1.05.

    Do not consider my rulings on motions and objections during trial as indicating  that I have any opinion about the evidence.  It is your job, not mine, to evaluate the evidence.

SAMPLE INSTRUCTION # 2:

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    See NCJIC 16.14.3.7 [Jury Not To Consider Gestures By The Judge].

    See NCJIC 24.3.1.3 [Reaction To The Evidence By The Judge, Attorneys, Parties, Or Court Personnel Must Not Be Considered].

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    16.14.3.7    Jury Not To Consider Gestures By The Judge

RATIONALE: Because even subtle gestures by the judge may influence the jury, a special cautionary instruction may be appropriate.

POINTS & AUTHORITIES: "[T]he demeanor of the trial judge, subtle as it may be, can affect the jury significantly." (Shoretz, "Let The Record Show: Modifying Appellate Review Procedures For Errors of Prejudicial Non-Verbal Communication by Trial Judges," 95 Columbia L. Rev. 1273, 1278 (1995).) Hence, the jury should understand that it must disregard gestures as well as actions and statements by the trial judge. (See NCJIC 24.3.2.3 [Jury Not To Consider Any Portion Of Counsel's Opening Statement Or Closing Argument Which Was Stricken].)

    See also NCJIC 16.15.3 [Jury Not To Consider Reaction To Evidence By Court Personnel].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

RESEARCH NOTES:

Annotation, Gestures, Facial Expressions, Or Other Nonverbal Communication Of Trial Judge In Criminal Case As Ground For Relief, 45 ALR5th 531.

    I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, or by any gestures I may have made, to suggest that I have any opinion about the evidence.

    If anything I have done or said or any gesture I have made has seemed to suggest that I have an opinion about the evidence you must disregard it and evaluate the evidence for yourselves.