Circuit Consensus On Judicial Role In Witness Examination

In an alien smuggling-related prosecution, Ninth Circuit joined other circuits in recognizing “there is nothing wrong with the judge suggesting a line of questioning to an attorney”; a judge's discussion with prosecutor and defender outside the jury's presence regarding whether the "underlying facts" were being properly developed was not improper, as the judge maintained his impartial role at trial and exercised the "well established" right of the trial judge to ask the questions him or herself, in United States v. Lopez-Martinez, 543 F.3d 509 (9th Cir. Sept. 10, 2008) (No. 07-10174)

FRE 614(a) provides that a trial judge may "on his own motion, call witnesses" and FRE 614(b) specifies the court's discretion to "interrogate witnesses, whether called by itself or a party." But can a judge forgo calling a witness and asking that witness questions? Is it permissible for a judge to discuss with the attorneys in a case, out of the hearing of the jury, an approach to the interrogation of witnesses? While no rule of evidence directly applies to this problem, courts have expanded the reach of a judge's role as that of facilitator of a case, in that “it would be disingenuous to condemn the trial judge's inquiry" into the approach of the parties toward a witness because "it is already well established that the judge may question the witness directly.” Lopez-Martinez, 543 F.3d at 13. The Ninth Circuit explored the general agreement of the circuits in this regard.

In the case, the defendant Lopez-Martinez was charged with smuggling aliens into the United States after leaving one member of his party behind who died in the desert. He was "convicted based largely on the testimony" of witness Camacho-Reyes, whose family paid the smugglers to bring them from Mexico to the U.S. through the Arizona desert border. After his trial, the defendant was convicted and appealed challenging the role played by the presiding judge during the trial. As an example of error, the defendant asserted that "[t]he trial judge played an active role in the trial. During a break in the prosecution's direct examination of Camacho-Reyes, after the jury had been excused, the judge asked counsel to remain. The judge then explained that he had 'some concerns about the quantum of evidence.' To the prosecutor, the judge directed: '[Y]ou have to get the underlying facts out.... [T]here's no indication as to when [Lopez-Martinez] was leading what [Camacho-Reyes] observed, what he saw [the alleged smugglers] do. And until you can get some factual underpinnings there, just to let [Camacho-Reyes] say, I think [Lopez-Martinez] was a smuggler, there's no facts by which to help the jury out.' The judge and prosecutor went back and forth for a time, with the prosecutor explaining how she had made, or planned to make, her case, and the judge explaining where he found holes in her evidence and what sort of testimony would be necessary to fill in the gaps."

The Ninth Circuit dismissed the defendant's contention that the judge's remarks and suggestions at trial were improper or demonstrated a prosecution bias. That would be so only in a world in which the "judge's only role is to call 'balls and strikes,' standing by to observe and occasionally ruling on objections pitched out by the attorneys." The circuit found this conception of the judicial role misconceived. Instead, the circuit described the role of the trial judge as "more than an umpire” and "surely more than a robed figurehead who simply observes the proceedings and keeps order." Lopez-Martinez, 543 F.3d at 13 (quoting United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988).

Contrary to the defendant's contentions, the circuit described a role for the trial judge that had gained considerable traction in the courts. This view "had long approved that a judge 'may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition.'” Lopez-Martinez, 543 F.3d at 513 (quoting United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988). As long as the trial judge observed these goals, it would be difficult to find an error. This was the general view, as observed by the circuit:

Although we have not had an opportunity, until now, to directly address the question, our sister circuits have held that there is nothing wrong with a judge suggesting a line of questioning to an attorney. We agree with the reasoning of these courts; it would be disingenuous to condemn the trial judge's inquiry here, given that it is already well established that the judge may question the witness directly.
Lopez-Martinez, 543 F.3d at 513 (quoting citing United States v. Ramos, 413 F.2d 743, 746 (1st Cir. 1969) (per curiam) (holding suggestions “by trial judges to prosecutors concerning elements of proof and appropriate lines of inquiry have often been held proper, even when made in the presence of the jury”); Fischer v. United States, 212 F.2d 441, 444-45 (10th Cir. 1954) (the “court has the power, within reasonable bounds, to question a witness ... and there is no reason why it may not direct an attorney to pursue a line of questioning if it is relevant to the case”).


This did not mean there were no limits to the judge's role. According to the circuit, "in some cases-although not here-the trial judge's inquiries and suggestions may cross the line and affect the judge's role as an impartial participant in the trial process. The circuit warned that a "'trial judge's participation [can] overstep[ ] the bounds of propriety and deprive [ ] the parties of a fair trial ... when ‘the record discloses actual bias ... or leaves the reviewing court with an abiding impression that the judge's remarks and questioning of witnesses projected to the jury an appearance of advocacy or partiality.' United States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001) (quoting United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986)). The judge's remarks objected to by Lopez-Martinez were made outside the presence of the jury, and evidenced no bias on the part of the judge.

While the circuit did not directly make reference to it, undoubtedly FRE 614 influenced the circuit's analysis. The circuit evaluated the judge's comments in light of the "well established" principle that "the judge may, on its own motion... call witness" directly as set out in FRE 614 (a) and (b). Section (a) provides the trial judge the discretion, on his or her "own motion ... [to] call witnesses...." Section (b) further specifies the power of the court to "interrogate witnesses, whether called by itself or by a party." In light of these propositions, the issue was not whether the judge may question a witness but whether the judge's examination was within proper bounds. As explained by the Advisory Committee Note regarding FRE 614(b):

Subdivision (b): The authority of the judge to question witnesses is also well established. McCormick § 8, pp. 12-13; Maguire, Weinstein, et al., Cases on Evidence 737-739 (5th ed. 1965); 3 Wigmore § 784. The authority is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse."


The circuit applied these principles to explain why that the defendant's appeal on this ground lacked merit. The trial record suggested that the

"trial judge's intent was to protect Lopez-Martinez and the fair trial process. After Lopez-Martinez objected to the judge's colloquy with the prosecutor, and insinuated that the court was encouraging the prosecution to manufacture testimony, the judge explained that he was concerned that he could not grant defendant's motion to enter a judgment of acquittal under [Fed. R. Crim. P] Rule 29 motion for judgment of acquittal in Lopez-Martinez's favor without giving the prosecution a chance to meet his concerns. Additionally, the judge emphasized that Lopez-Martinez was facing a very serious sentence, and that he did not want to see Lopez-Martinez convicted on accusations unsupported by evidence. The clear import of this record, then, was not that there was any bias expressed by the judge against Lopez-Martinez, but rather the judge's desire to shore up any Rule 29 ruling in Lopez-Martinez's favor against appeal, and to ensure that if Lopez-Martinez was convicted, it was on the basis of evidence, not speculation. Given the absence of evidence of actual (or even implied) bias and the lack of any effect on the jury, there is no basis for Lopez-Martinez's claim that the trial judge's remarks were improper.
Lopez-Martinez, 543 F.3d at 513-14.


The Lopez-Martinez case is an interesting case not merely for its analysis of the appropriate role of the trial judge. As indicated in an earlier blog entry on the case, the Ninth Circuit also emphasized the broad discretion of the trial judge in deciding the admission of expert evidence. In this other part of the case, the circuit explained that under FRE 702 the trial court retained a “broad latitude” to decide “how to determine reliability.” Lopez-Martinez, 543 F.3d at 514. The circuit observed that a law enforcement agent’s testimony about “patterns and methods common among smugglers” was “neither rocket science nor complex statistical modeling” and there was no need for the trial judge to conduct a formal Daubert hearing or to mandate that the agent provide a detailed description of each step in logical chain the agent used to reach his conclusions.

Federal Rules of Evidence
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