On Trial Court Questions At Trial, First Circuit Reminds Judges To Remain "Unbiased Neutral Arbiters"

What are the boundaries to a judge questioning a witness under FRE 614? The First Circuit examined 23 points in a drug trial which raised questions by the defendant about whether the trial court improperly questioned witnesses. The First Circuit disagreed and found the court's questions comfortably fit within its FRE 614 authority to clarify evidence of the alleged 63-person drug trafficking organization at issue, in United States v. Ayala-Vazquez, _ F.3d _ (1st Cir. May 2, 2014) (Nos. 12-1540, 11-2347)

FRE 614 concerns a trial court's power to examine witnesses. Specifically, under FRE 614(b), a "court may examine a witness regardless of who calls the witness." As its Advisory Committee Note explains, the rule ensures that "the judge is not imprisoned within the case as made by the parties," The rule enables the trial court to aid the jury to better understand the case the parties' present. The First Circuit recently examined the judicial questioning of witnesses and considered the boundaries of such questioning. The First Circuit recently considered a challenge to judicial questioning at trial and offered some guideposts.
The circuit also reviewed how parties found this preferable to other ways available to the court to provide context to a case.

Trial Court Proceedings: Judicial Questioning At Trial

Two brothers were tried for their role in an extensive and "long-lived" drug trafficking organization. The indictment charged 63 persons in the scheme. One of their claims on appeal involved the role the trial judge played in "questioning" witnesses and "identif[ying] ... other individuals named on the Indictment." Specifically, their concerned the "trial judge letting the jury know that certain individuals referred to in trial testimony [by various witnesses] had been named in the Indictment, even though neither the witness nor prosecutor tied that individual by name to the Indictment."

The circuit selected from 23 incidents cited by the defendant samples from the trial court transcript of the judge's involvement. The circuit noted all the interventions "followed a similar format" which the circuit cited to provide "the general tenor of what went on." For example in questioning a witness about a cocaine drug point set up by the defendant, the following occurred in describing who operated drug points for the charged organization:

Witness:
That [cocaine drug point] was [defendant Ayala's]. A five-dollar cocaine, which was [Ayala's]; crack, which was [Ayala's]; and then the heroin, well, Omar “El Gordo.” “Nino Brown” remained in charge of the heroin drug point per se. You know, they are the ones in charge of getting the drug, buy the drug, give it to my brother, who was in charge of the table, and after the table, seven days a week, each one of the owners of the drug point-because there were so many-the ones that I can mention now are “Raymond,” “Chequito,” “Popo,” Los Olivo—that is, Rosa, “Ñaña”—Delvin.

Those are the ones that I remember right now.
Prosecutor:
What would happen -

The Court:

Wait a minute. “Checo” is Jose Rosario Oquendo

The Witness:

Yes.
The Court:
No. 11 in the indictment. “Raymond” is Ramon Rosario Oquendo?”
The Witness:
Yes.
The Court:
Are they brothers?
The Witness:
Yes.
The Court:
“Popo” is Pedro Juan Diaz.
The Witness:
I don't know his name. I know him by “Popo.”
The Court:
All right. And who were the girls?
The Witness:
Los Olivo.
The Court:
Is that Maribel Olivo Rivera?
The Witness:
No, but they are family.
The Court:
Angel Soto Olivo?
The Witness:
No.
The Court:
All right. Go ahead.

The prosecutor then resumed the examination, again with no objection from defense counsel. According to the circuit opinion, this testimony pretty much:

captures the essence of the challenged judicial conduct. Regardless of whether a witness was testifying on direct or cross-examination, if he or she mentioned the nickname of an individual thought to be listed in the Indictment, the trial judge broke in and asked the witness whether he or she knew more than the nickname. Sometimes this was done in the form of a question, and other times by way of an affirmative statement calling for the witness to respond affirmatively or negatively. If the witness confirmed the individual's name in full or in part, the trial judge often went on to state which number defendant he or she was on the Indictment. This happened eighteen times between March 29 and April 4, all without objection or comment from defense counsel.

Ayala-Vazquez, _ F.3d at _. Defense counsel ultimately did raise an objection, out of hearing of the jury he told there court that he observed "a pattern and practice of the Court that when a witness identifies somebody by a nickname and then a question is asked about what his real name is, then there is a comment [from the trial judge] about he is No. X in the indictment that is being tried.” According to the defense this intervention "improperly added to the witness's testimony" by, for example, "telling the jury that “Martillo” was named in the Indictment even though the witness who mentioned him did not know “Martillo's” full name, the trial judge, according to counsel, added to the evidence against the appellants."

The court offered to stop that practice, provided that some arrangement was made to "let the jury know when a witness was referring to one of 'the defendants that are in the indictment.'” By "eliciting further information from witnesses and then telling the jury when certain individuals were named on the Indictment," the judge helped facilitate the jury's understanding of "defendants' nicknames or aliases" and keep track of who was who. The court noted that it had failed to read the Indictment to the jury before trial.

The judge proposed to stop his questioning to clarify witnesses "if defense counsel would agree 'to give the indictment to the jury so they can look up the names" themselves. This offer was declined by the defense who proposed instead that:

the judge ... instruct the jury that 'only Mr. Ayala' was on trial, not anyone else named on the Indictment. He also asked the trial judge to tell the jury that, in questioning witnesses, he [the judge] was “not commenting on the facts of the case.” The trial judge did not go along with this proposal, and made a counter-offer instead. The judge stated he would give an instruction to the effect that none of the other individuals listed in the Indictment were on trial, and that “they are only to decide the case of Mr. Ayala and Mr. Cruz Vazquez.” Maintaining he was “not commenting on any facts of the case,” the trial judge refused to give any other instruction.

Ayala-Vazquez, _ F.3d at _. Following their convictions by the jury, the defendant's claimed on appeal that the trial judge's questioning "crossed the line into the realm of advocacy when he informed witnesses that certain individuals had been indicted along with the appellants."

First Circuit Review: Assessing Prejudice

Initially, the First Circuit noted that "there is nothing inherently improper about a judge posing questions at trial." Ayala-Vazquez, _ F.3d at _ (citing FRE 614(b) ("The court may examine a witness regardless of who calls the witness."); Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997) (A judge's permissible participation includes the "common law power to question witnesses and to analyze, dissect, explain, summarize, and comment on the evidence."; a "judge has wide discretion to interject questions in order to throw light upon testimony or expedite the pace of a trial"); see also United States v. Santana-Pérez, 619 F.3d 117, 124 (1st Cir. 2010) ("Among other things, the court has 'the prerogative, and at times the duty, of eliciting facts he deems necessary to the clear presentation of issues.’") (quoting United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir. 1989) (further citation omitted)).

The circuit did not need to decide whether any error occurred by the trial court's questioning. Since the defendants could not demonstrate prejudice, any error was harmless beyond a reasonable doubt. Ayala-Vazquez, _ F.3d at _ (citing United States v. Paiva, 892 F.2d 148, 159 (1st Cir. 1989) (applying harmless error analysis where the judge erred by "adding to the evidence")). As the circuit explained:

The relative infrequency of the complained-of comments--which were made on only four of the eighteen days of trial--cuts against a finding of prejudice. The complete lack of any objection from defense counsel until the nineteenth such comment further militates against a finding of reversible error. This is
especially so because the absence of an objection deprived the trial judge of an earlier opportunity to fully evaluate the effect of his questioning and comments upon the jury.

Furthermore, the judge instructed the jury on more than one occasion that his comments were not evidence and that it was up to the jury alone to find the facts.

Ayala-Vazquez, _ F.3d at _. Finally, the evidence of guilt was "overwhelming".

Guideposts: Unbiased Arbiter

The First Circuit offered some guidance for trial courts in their questioning of witnesses at trial:

[W]e take advantage of this opportunity to remind trial judges in this Circuit that when they do choose to exercise their power to actively involve themselves at trial, they must remain constantly vigilant to ensure they do not infringe upon the province of the jury by commenting or appearing to comment (positively or negatively) on a witness's credibility. Similarly, trial judges must guard against adding to the evidence or smoothing the pathway to a verdict in favor of either side under the guise of questioning witnesses or commenting on the evidence. In sum, trial judges must do their utmost to avoid creating the impression that they are anything other than unbiased neutral arbiters.

Ayala-Vazquez, _ F.3d at _ (citing Starr v. United States, 153 U.S. 614, 626 (1894) ("It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that hislightest word or intimation is received with deference, and may prove controlling."); see also Glasser v. United States, 315 U.S. 60, 82 (1942) (A trial judge bears "the responsibility of striving for that atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding."))

Conclusion

The Ayala-Vazquez case provides insight into the matter in which a challenge to trial court questioning will be analyzed on appeal. The obligation to create a record and make timely objections will be one factor that is considered. Finally, the case offers some guideposts for permissible questioning.

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