Federal Evidence Review

First Circuit decides that while evidence was sufficient to support convictions, the trial court’s questioning was prejudicial and that the court's questioning introduced inadmissible hearsay, which required vacating the convictions and remanding the case for a new trial, in United States v. Melendez-Rivas, 566 F.3d 41 (1st Cir. May 15, 2009) (No. 07-1962)

FRE 614 expressly recognizes the right of a trial court to interrogate a witness at trial. Can the impartiality of the judge at some point be raised by judicial questions? What happens if the judge elicits inadmissible hearsay or other evidence? These issues were considered in a recent First Circuit case.

In the case, Victim Ramos was taken from his motorcycle, and forced into a van by a group, and murdered by a man who was the estranged husband of Falu, who Ramos had been dating. The murder appeared to be based on jealousy over the same woman. The murderer was subsequently killed. When the victim was initially confronted and taken, one witness observed that the defendant was handed a gun. Defendant Melendez-Rivas was charged as a participant in the group who apprehended Ramos and killed him.

At trial, the during the re-cross-examination of the defendant’s father in law, who was a police officer, during the defense case, the court denied the government’s request to ask the witness whether he was aware that the defendant had told the FBI he was in the van with two other participants when the victim was confronted. However, the government could inquire “about rumors regarding connections between Melendez-Rivas and the kidnappers on the evening of the kidnapping.” Melendez-Rivas, 566 F.3d at 48. The prosecutor asked the witness whether he “had heard rumors as to what had happened to [victim] Kelvin on June 16.” The witness acknowledged he had. The trial court inquired, “what have you heard?” The witness acknowledged hearing a rumor “[t]hat Mr. Cora, Edwin and Johal took [Kelvin] out [of] the housing project.” In response to the prosecutor’s question whether he had heard that the defendant was involved, the witness said, “Never” and denied learning of any “connection between the defendant and the men who had kidnapped Kelvin.” Melendez-Rivas, 566 F.3d at 48. The trial court then picked up the questioning:

The Court:

Did the FBI ever interview you about the facts of this case?

Rivera:

They made a comment to me one time when they came by the front of my house.

The Court:

And can I ask you what the comment was?

Rivera:

They went to the house of a neighbor, and when I am coming to my house, one of the agents comes up to me and says to me that my son-in-law was involved in a series of felony crimes that could lead to the death penalty.

Defense Counsel:

I have an objection at this time.

The Court:

That is what they told you? That is what they told you?

Rivera:

That is correct.

Defense Counsel:

I have an objection and a motion.

The Court:

You can make your motion. Please approach.

The Court:

And, of course, you did not believe that?

Rivera:

No, never in my life.

The defense moved for a mistrial based on the statement “that the FBI told him that there were a series of felonies that could lead to the death penalty.” The trial court denied the motion. Later, the defendant testified that he was coerced to participate in the confrontation with the victim.

In a subsequent written motion, the defense explained the prejudicial impact of the questioning and responses, including undermining defense evidence that the defendant had not been involved with the criminal justice system. The defense requested a curative instruction:

“You are instructed that a judge may ask questions during a case. However, on occasion a judge may ask a question that is not proper and which you should not consider. This happened in this case. This Court asked a question of the witness, Police Officer Victor Rivera[,] which brought about an answer that is improper for you to consider. Therefore, you are instructed to strike from your minds the question asked by the Court and the response of the witness. It would be a violation of your oath as jurors to consider that question and the response to it.”

The motion and request for the instruction were denied. The jury convicted the defendant, who was sentenced to 50 years' imprisonment. On appeal, the defendant challenged the sufficiency of the evidence and the questioning by the court as prejudicial and admitting inadmissible evidence.

The circuit found the evidence was sufficient to support the convictions. However, the trial court’s questioning required the convictions to be vacated and the case to be remanded for a new trial. The circuit concluded: “The totality of the record shows that the judge's questions elicited inadmissible, prejudicial testimony. The testimony was not stricken, nor was a curative instruction given. The inadmissible evidence contradicted one of defendant's central defenses and cast doubt on the credibility of his coercion defense. We cannot say this error was harmless.” Melendez-Rivas, 566 F.3d at 51. The circuit noted the prejudice caused by the trial court:

“We conclude that defendant was seriously prejudiced. First, the question about what comments the FBI had made to the witness called for inadmissible hearsay. The witness's answer was not only inadmissible, but was very harmful to the defendant: the FBI agent purportedly stated ‘that [Melendez-Rivas] was involved in a series of felony crimes that could lead to the death penalty.’ The jury could easily have understood this to be a representation that Melendez-Rivas was involved in other serious crimes, crimes so serious as to raise the prospect of the death penalty. That was simply untrue. Second, this certainly undercut the defendant's testimony that he had no criminal record or charges against him and did not associate with two notorious criminals in the project. Further, the jurors could have perceived the question as enhancing the prosecution's effort to impeach a defense witness. Over counsel's objection, the court did not strike the answer and tell the jury to disregard it. Instead, the court asked again whether that is what the FBI agents had told the witness. The witness answered, ‘That is correct.’ This repetition, made within earshot of the jurors, reinforced the prejudicial effect.”

Melendez-Rivas provides an uncommon example of a case in which the trial court’s questioning resulted in vacating convictions. While the trial court generally has the authority to interrogate under FRE 614(b), the court must remain impartial and avoid inadmissible evidence. The case also shows that not withstanding the sufficiency of the evidence, the conduct of another judicial actor in the process (here the judge) ultimately impaired the judgment in the case.