Federal Evidence Review

Trial court’s “judicial testimony” used at trial violated FRE 605, and was unfairly prejudicial under FRE 403, in United States v. Blanchard, 542 F.3d 1133 (7th Cir. Sept. 8, 2008) (No. 07-2780).

A Seventh Circuit case shows how “judicial testimony” from one hearing was misused and allowed at trial resulting in reversal of a drug and firearm trial conviction. The defendant’s son initially obtained evidence that his father was manufacturing methamphetamine, which he gave to his mother, who was separated. She provided it to the police, who executed a search warrant and seized methamphetamine and manufacturing materials and firearms. The son testified at several hearings and gave conflicting testimony about whether his father, the defendant, possessed certain firearms found on the residence porch.

Before the grand jury, the son testified that his father owned and controlled the firearms. At a suppression hearing, the son testified that his father did not own or possess the firearms. The prosecutor cross-examined the son about specific inconsistent statements he gave to the grand jury. The defense objected that one prosecutor question, whether the son had described the “porch area as his exclusively controlled ‘apartment’ at the grand jury hearing,” was not impeachment. The district court overruled the objection and disbelieved the witness, explaining:

“I believe it is [impeachment]. The Court finds it to be impeachment. The Court finds this witness not to be credible and that the testimony he has given today is not credible. The Court’s had a chance to observe the manner and demeanor of his testimony. The manner and demeanor on direct was very assertive. . . . I determined that I would ask some questions. And as soon as I began questions about the ownership of the guns back in 2001—of course, I have no knowledge of the grand jury testimony—all of a sudden, the demeanor began changing dramatically, how he hangs his head, how he looks, how his facial mannerisms changed; and it was very obvious to me after 13 years of being a criminal lawyer and 17 years of being a judge—30 years of being experienced—that his answers all of a sudden became deceptive, less than credible. And, of course, now [the prosecutor] has asked him specific questions that lead me to the undeniable conclusion that he has not been credible and, because he knew that his answers that he was giving were not the same answers he had given to the grand jury in April.”

Blanchard, 542 F.3d at 1145. At a further suppression hearing, the son recanted and “testified that his father owned almost all of the porch firearms, that his father directed the 2001 removal and 2004 return of those firearms, and that his father enjoyed unfettered access to the porch area beginning sometime around October 2004 (when [the son] relocated his bedroom to another part of the house).” Blanchard, 542 F.3d at 1146.

During the trial, defense counsel attempted to impeach the son’s trial testimony by suggesting the son cooperated with the government to avoid perjury charges. In response, the son “acknowledged the ‘cloud of a perjury charge’ that followed these conversations and his desire to obtain ‘some mercy for what [he] did’ by cooperating with the government.” Blanchard, 542 F.3d at 1147. During redirect, the prosecutor asked who suggested the son’s testimony was untruthful. The son replied, “The judge and you.” Blanchard, 542 F.3d at 1147. The prosecutor then asked the son whether he recalled what the judge said to him. The judge overruled the defense objection and denied a request for a sidebar and noted: “No. If I said something, it will be in the record, and you have a copy of the record. Everybody’s been talking about what everybody said. So if you have what I said, it’s on the record. It can be put before the jury.” Blanchard, 542 F.3d at 1147. The prosecutor read the judge’s comments from the suppression hearing concerning the witness’s lack of credibility. The trial court referred to his suppression hearing comments as “judicial testimony”: “It’s my statement. You’ve got the record. Has he misread it? . . . It’s a direct statement of the Court in a judicial proceeding. You were present. You have a copy of it. Has he misread what I said? . . . This is reading judicial testimony.” Blanchard, 542 F.3d at 1147 (emphasis added). The witness responded that he recalled the remarks of the judge. The son then agreed that the judge was “the first person to raise any issue” about whether he was “telling the truth.” Blanchard, 542 F.3d at 1147. The defendant was convicted for manufacturing methamphetamine and possession a firearm as a felon. He was sentenced to 150 months’ imprisonment.

The circuit reversed the convictions based on the use of the trial judge’s comments. The circuit agreed that the use of the judge’s comments from the suppression hearing violated FRE 605 (“The judge presiding at the trial may not testify in that trial as a witness.”). The judicial comments concerned the credibility of the witness. The circuit noted that it was of no consequence that the prosecutor read the court’s prior comment since the court acknowledged before the jury “that the suppression-hearing comments were his own, insisted that the only valid objection to the comments’ introduction could be if they were not read ‘word for word,’ and characterized the comments as his ‘judicial testimony.’” Blanchard, 542 F.3d at 1149 (citation omitted). The circuit added that FRE 605 “would serve little purpose if it were violated only where a judge observes all the formalities -- taking of an oath, sitting in the witness chair, etc. -- of an ordinary witness.” Blanchard, 542 F.3d at 1149. Alternatively, the circuit held that the judicial comments were unfairly prejudicial under FRE 403 since they were of “dubious relevance” and highly prejudicial by interjecting the court’s views on witness credibility. Reversal was required since the error was not harmless. Given the different versions of the son’s testimony, the court endorsed one version.

As the circuit concluded: “[I]n allowing his suppression-hearing comments to come in before the jury, the trial judge placed not just a thumb, but a very heavy fist, on the scales of justice, tipping the balance firmly in the government’s favor.” Blanchard, 542 F.3d at 1152.