Federal Evidence Review

In bank robbery trial, trial judge “has the prerogative, and at times the duty, of eliciting facts" under FRE 614(b) (by asking witnesses questions regarding the FDIC insurance status of the victim institutions) if it serves to "clarify 'legal and factual matters'" and if "the court 'remains impartial and does not become an advocate for either side,” in United States v. Pickar, __ F.3d __ (8th Cir. Aug. 12, 2010) (No. 09-2361)

Shortly before the adoption of the FRE, the D.C. Circuit addressed what is a recurring question under what would become FRE 614(b) (Calling and Interrogation of Witnesses by Court - Interrogation by court). The case touched on questions raised by a trial court judge's questioning of witnesses that extended beyond the scope of the prosecutor's examination. In assessing if the judge had exceeded his authority, the D.C. Circuit suggested a certain tension in the trial judge's role:

"The precepts of fair trial and judicial objectivity do not require a judge to be inert. The trial judge is properly governed by the interest of justice and truth, and is not compelled to act as if he were merely presiding at a sporting match. He is not a 'mere moderator.' As Justice Frankfurter put it, '[f]ederal judges are not referees at prize fights but functionaries of justice.' A federal trial judge has inherent authority not only to comment on the evidence adduced by counsel, but also in appropriate instances to call or recall and question witnesses. He may do this when he believes the additional testimony will be helpful to the jurors in ascertaining the truth and discharging their fact finding function. What is required, however, are reins of restraint, that he not comport himself in such a way as to 'tilt' or oversteer the jury or control their deliberations."

United States v. Liddy, 509 F.2d 428, 438-40 (D.C. Cir. 1974)(circuit considers abuse by judge conducting “inquisitorial undertaking,” but notes that in the case at hand the judge's questioning of the witnesses did not constitute the type of “wide ranging probe of witnesses that transcended the judicial province”) (citations and footnotes omitted).

FRE 614's adoption did not settle the difficult balance between the judge as promoter of truth and as the neutral moderator of the case. In a recent case, the Eighth Circuit reiterated some of the limits and authority the rule provides the trial court in fulfilling its appropriate role.

In the case, defendant Pickar entered a Citizens Bank in Lakeville, Minnesota and told a teller that he wanted to make a large withdrawal. As recounted by the teller, the defendant "[w]ithout raising his voice, ... demanded all of the 'hundreds, fifties, twenties, and tens' in [the teller's] drawer. Pickar did not say anything else. Pickar hid his right hand in a pocket of his jacket and put his right arm on the counter. Pickar did not say he had a weapon in his pocket," but the teller thought he had one and might 'hurt [her] or somebody else working in the bank.' [The teller] gave Pickar money from one of her drawers, and Pickar looked at the money before he left the building." The police were summoned. They eventually located the defendant. Pickar, __ F.3d at __.

At trial, part of the government's burden involved showing federal jurisdiction in the matter, which could be done by showing that the victim bank "was insured by the Federal Deposit Insurance Corporation (FDIC)." See 18 U.S.C. § 2113(f) (bank's deposits need to be federally insured at the time a fraud was committed). According to the circuit, the "only evidence the government offered to prove Citizens Bank was FDIC-insured was the testimony of Keith Sperbeck, a Citizens Bank vice president and branch manager. The government asked Sperbeck whether the bank was FDIC-insured on the date of the robbery, and Sperbeck responded affirmatively." Pickar, __ F.3d at __. Ultimately the trial ended in the defendant's conviction and the defendant filed an appeal. He contended in part that Sperbeck's testimony was not a sufficient foundation for a finding that the bank was FDIC-insured. To the extent evidence was received on this point, the defendant contended that it was improper because it was brought out when "the district court became an advocate when questioning a witness" regarding federally insured status.

The Eighth Circuit rejected this challenge to the defendant's conviction, noting that it considered charges of inappropriate trial court questioning "in the context of the entire record by employing a balancing test to determine overall fairness.” Pickar, __ F.3d at __ (quoting United States v. Henderson, 770 F.2d 724, 730 (8th Cir. 1985)) It was the essence of FRE 614(b) that a judge:

"may question witnesses called by either party," the circuit concluded. Under this standard, "The district court may question witnesses to clarify 'legal and factual matters' so long as the court 'remains impartial and does not become an advocate for either side.' The district court "'has the prerogative, and at times the duty, of eliciting facts [it] deems necessary to the clear presentation of the issues.'"

Pickar, __ F.3d at __ (citing United States v. Henderson, 770 F.2d 724, 729-30 (8th Cir. 1985); Dranow v. United States, 307 F.2d 545, 572 (8th Cir. 1962)).

In the defendant's case, the judge stayed well-within the boundaries of the FRE:

"The district court questioned Sperbeck, the government's witness, to clarify Sperbeck's knowledge of exhibits offered by the government regarding whether Citizens Bank was FDIC-insured. The district court was permitted to ask these questions under Fed.R.Evid. 614(b). The district court remained impartial and did not become an advocate for the government. The district court's questioning did not affect the fairness of the trial, and the questioning was permissible."

Pickar, __ F.3d at __.

Unfortunately, the details provided by the Circuit in Pickar are too sparse to obtain a nuanced understanding of the scope of the questions employed by the trial judge. But in assessing the general principles guiding the issue of judicial questioning of witnesses, the Circuit demonstrated that interference by the trial judge in the presentation of evidence is subject to the application of important principles of a fair trial.