Judge's Improper Question of Defendant as Witness is not Reversible (12/27/13)

In United States v. Ottaviano, 738 F.3d 586 (3d Cir. 2013), here, a precedential opinion,, the defendant was convicted "for mail and wire fraud, money laundering, tax evasion, and conspiracy to defraud the Internal Revenue Service."  The Third Circuit held that the trial judge's questioning of the defendant was improper because it conveyed the trial judges conclusions on the ultimate issue and the credibility of the defendant, issues reserved to the jury.  The Court of Appeals, however, affirmed because, given the overwhelming proof of guilt, the questioning -- clearly error -- was not reversible error.

The Court of Appeals describes the defendant as "one of those peculiar Americans who does not believe himself bound by United States tax law" who promoted that belief to others for his financial gain.  The whole saga of his activities in that promotion is the usual stuff of which this type of tax protestor / tax defier case is made.

At trial, however, the defendant chose to represent himself.  The Court had standby counsel who participated in some portions of the case, including some questioning of the defendant when the defendant, as his own lawyer, chose to testify.  Standby counsel's questions were scripted by the defendant.  At some key points in the defendant's testimony, the Court began asking questions, particularly about the defendant's claim in his sales promotions to have been a law school graduate.  That was a lie.  Apparently not content with the prosecutors' ability to cross-examine on whatever points were appropriate (including the false law school claim), the judge bore in.

The opinion quotes significant portions of the judge's questions that most concerned the Court of Appeals.   Here is a snippet of the questioning which went, in total, for many pages:

THE COURT: Let me ask you this: Did you ever think that it was okay to earn money based on a similar premise you're articulating" 

OTTAVIANO: No, I wouldn't think so.

THE COURT: Wouldn't think so" . . . But it's okay to give law school [sic] your false transcript and to get a degree based on something that was fraudulent or false" That's okay"

The Court of Appeals concluded that this line of questioning by the judge went too far.

The background for the holding is Federal Rules of Evidence 614(b), here, which permits a judge to call a witness and permits a judge to examine a witness called by any party.  This right is not without its limitations, which is what the issue was in this case.

The Court of Appeals gave a good summary of the background and limitations of the judge's right to question witnesses in a criminal case.

[A] judge must not "abandon his [or her] proper role and assume that of an advocate." United States v. Adedoyin, 369 F.3d 337, 342 (3d Cir. 2004) (quoting United States v. Green, 544 F.2d 138, 147 (3d Cir. 1976)). "[I]solated questioning to clarify ambiguities is one thing," but "a trial judge cannot . . . take over the cross-examination for the government to merely emphasize the government's proof or question the credibility of the defendant and his witnesses." Beaty, 722 F.2d at 1095 (quotation omitted). "The judge's participation must never reach the point where 'it appears clear to the jury that the court believes the accused is guilty.'" Id. at 1093 (quoting United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)). 

Judges must be especially careful about their conduct during trial because they hold a position of special authority and credibility in the eyes of the jury. Thus, "cross-examination of a witness by the trial judge is potentially more impeaching than such an examination conducted by an adversary attorney" and can prove fatal to a witness's credibility, particularly if that witness is the defendant. United States v. Godwin, 272 F.3d 659, 678 (4th Cir. 2001). "Even when the evidence provides the court with a negative impression of the defendant," as was the case here, "the judge must refrain from interjecting that perception into the trial." Id. See Beaty, 722 F.2d at 1094 (observing that "a jury might think that a witness would be more likely to tell the truth to the judge than to counsel"). 

In Beaty, we found error in the judge's "overzealous" and "lengthy cross-examination" of a key defense witness, which spanned four pages in the trial transcript. 722 F.2d at 1096. We noted that judges should minimize their own questioning during trial, "to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence." Id. at 1095 (internal quotation marks omitted); see also United States v. Wilensky, 757 F.2d 594, 597-98 (3d Cir. 1985) (holding that trial judge's interruptions and extensive examination during both direct and cross-examination of a key defense witness "overstep[ped] the bounds of prudent judicial conduct"). 

In this case, the District Court erred in questioning Ottaviano. It skeptically questioned him at length during his direct examination and, after the Government completed its thorough cross-examination, "follow[ed] up" on prosecutors' questions about Ottaviano's fake educational credentials with a barrage of its own. On redirect, the Court repeatedly interrupted again, challenging Ottaviano about his assertions and his witnesses' testimony. Then, at the end of redirect, the judge renewed his indignation about Ottaviano's false educational credentials, prodding him for approximately five pages of the trial transcript and inviting him to speculate on the ultimate issue in the case.

The Court then considered whether the error was reversible and held that it was not, given the "overwhelming."  The Court concluded:  "Viewing the trial in its totality, we hold that there was such overwhelming evidence of Ottaviano's guilt that the Court's improper questioning was immaterial to the jury's verdict."