Eighth Circuit also notes that since the hearing was before a judge and not before a jury this “decrease[d] the danger of prejudice to the defendants from the Magistrate Judge's questioning,” in United States v. Almeida-Perez, 549 F.3d 1162 (8th Cir. Dec. 16, 2008) (Nos. 07-2602, 07-2635)
A recent Eighth Circuit case notes the importance of making an objection on the record in order to challenge a trial court's interrogation.
In the Almeida-Perez case, two brothers entered conditional plea agreements in which they were convicted for being illegal aliens in possession of firearms, but reserved a right to appeal the denial of their suppression motion. The suppression hearing focused on whether two officers were given consent to enter their residence where the firearms were found. Conflicting testimony was presented by the officers and family members who testified. A magistrate judge resolved the credibility issues and recommended denial of the motion to suppress. The district court adopted the recommendation, and sentenced to twenty-four months' imprisonment.
On appeal, for the first time, the defense claimed that the magistrate judge violated FRE 614(b) in his interrogation of witnesses by abandoning his impartiality. Because no objection was lodged, the issue was reviewed for plain error and none was found. As the circuit explained, “It is true that the Magistrate Judge engaged in sometimes extensive examination of the witnesses, including asking them about whether they entered this country legally or illegally.” Almeida-Perez, 549 F.3d at 1173.
In reviewing the record, the circuit concluded that “we cannot say that the Magistrate Judge's questioning, if it was error, was plain error.” Almeida-Perez, 549 F.3d at 1174. One factor that the circuit considered significant was that “the suppression motion was tried to a Magistrate Judge, rather than to a jury, [which] decrease[d] the danger of prejudice to the defendants from the Magistrate Judge's questioning.” Almeida-Perez, 549 F.3d at 1174 (citing United States v. Blood, 435 F.3d 612, 629 (6th Cir. 2006) (“Blood also claims that a sarcastic comment made by the trial judge interfered with his case. However, this comment was made out of the presence of the jury, which neutralizes whatever inappropriateness it may have contained, and Blood has failed to meet the "high hurdle" required to prove bias from remarks made in the absence of the jury.”) (citation omitted)).
The case highlights two issues:
- It may be a delicate matter to lodge an objection concerning the judge’s interrogation, but the failure to preserve the issue in the record can be fatal on appeal. In fact, FRE 614(c) recognizes the difficulty a party may have in objecting to questioning from the court. Consequently, the rule provides: “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.”
- The courts recognize a difference between impermissible interrogation before a jury or a judge. This may affect the strategy considered in challenging judicial remarks.
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