Conduct of Trial - Right of Trial Judge to Call own Witness.
The same principals apply when a trial judge calls his own witness as when he cross-examines a witness. Trial judges have wide discretion in directing the presentation of evidence but must exercise that discretion appropriately and without prejudice to the parties. Trial courts sometimes must take a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact.[1]
In People v. Arnold, [2] the issue was whether a trial court, in the exercise of discretion, can call its own witness. Defense counsel advised the court that he had a witness outside the courtroom, but after speaking to the witness rested without calling any further witnesses. The court inquired if the witness was outside and then said: ‘All right. I would want to ask him a couple of questions. Bring him in, please.” Defense counsel placed an objection on the record. The trial court gave no reason for calling the witness and did not articulate the consequences of doing so. The court simply called the witness after both sides had rested and had consciously and deliberately chosen not to call him. The Court of Appeals held that under the circumstances of this case, the court abused its discretion as a matter of law. It assumed the parties’ traditional role of deciding what evidence to present and introduced evidence that had the effect of corroborating the prosecution’s witnesses and discrediting defendant on a key issue. Although it did not appear from the record that the Trial Judge intended to give an advantage to either side, he abused his discretion in calling the witness on a key issue when both parties chose not to, and it resulted in prejudicial error. The Court stated: “We do not hold that a court may never call its own witness over the objection of a party. In those unusual circumstances in which a court feels compelled to do so, it should explain why, and invite comment from the parties. In that way, the court can consider what it aims to gain against any claims of possible prejudice. Moreover, an appellate court will have a basis on which to review the trial court's exercise of discretion.”[3] The Court of Appeals observed that a case calling for special expertise, or other such circumstances, may require a trial court to call its own witness, citing as an example Family Ct Act § 350.4 [2].[4] It noted that, even among jurisdictions where a rule of evidence or statute allows a court to call a witness, the practice is “not particularly desirable” and should be engaged in sparingly, so as to retain the court's impartiality. [5]
Counsel should object, with specific objections, if the role of the judge in questioning witnesses goes beyond clarification of the issues and appears to become partisanship or biased. [6]
The court may not call its own witnesses to establish that a witness committed perjury. Conflict in the testimony of witnesses presents a fundamental question of fact for resolution by the court, as the trier of the facts, on the basis of the evidence presented. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Where the record suggests that perjury has been committed, the matter may, in the sound exercise of court's discretion, be referred to district attorneys’ office for investigation. [7]
[1] People v Moulton, 43 NY2d 944, 945 [1978]; People v Jamison, 47 NY2d 882, 883 (1979).
In Kennedy v. Kennedy, 256 A.D.2d 1048, 683 N.Y.S.2d 608 (3d Dept.,1998) the Appellate Division held that questions posed by the trial court to the husband's expert in a divorce action were a proper attempt to clarify the expert's "guarantee" of valuation of marital assets.
In Accardi v. City of New York, 121 A.D.2d 489, 503 N.Y.S.2d 818 (2d Dept.,1986) the Appellate Division held that the trial judge may assume an active role in the examination of witnesses where it is proper or necessary to facilitate or expedite the orderly progress of the trial.
[2] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782, (2002)
[3] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782 (2002).
In Matter of Carrol v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 841 (1st Dept, 1993) after both sides rested, the Court indicated an interest in hearing testimony from two witnesses, who resided in Paris, either in person or by way of deposition. When counsel for petitioners protested, the court announced, “Counsel, I am not going to close this proceeding without hearing from Mr. Bernard [Haim] and from Mr. Music. That is my ruling.” In this proceeding pursuant to CPLR article 78, the Appellate Division held that it was beyond respondent's power as a Supreme Court Justice to compel the proposed witnesses, residing in France, to attend at trial in this jurisdiction and give evidence (Constitution Art. 6, § 1; Judiciary Law § 2–b[1] ). Turning to the merits of petitioners' application, it observed that it is well settled that a court may conduct limited examination of a witness to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial. But, by presuming to direct the production of testimony from witnesses neither deposed by the parties nor called by them at trial, the Trial Justice has transgressed the bounds of adjudication and arrogated to himself the function of advocate, thus abandoning the impartiality required of his office. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Respondent asserted no valid ground for the introduction of the testimony of the proposed additional witnesses into this action. If, in the opinion of the court, a party has failed to introduce sufficient evidence to support the judgment sought, the clear option available to the court is to render judgment in favor of the adversarial party. Similarly, if the testimony of witnesses presented by one party is unworthy of belief, it is incumbent upon the court, as trier of the facts, to make findings in favor of the adversarial party.
In Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011) the child appealed from Family Court order which adjudged her to be a juvenile delinquent. Although her contention that she was deprived of a fair trial because the Judge took on the function of an advocate by excessively intervening in the fact-finding hearing was unpreserved for appellate review, the Appellate Division reached the issue in the exercise of its interest of justice jurisdiction, because the Judge's excessive intervention deprived the appellant of her right to a fair fact-finding hearing. It observed that although trial courts may appropriately take an active role in the presentation of evidence "in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67), the function of the judge is "to protect the record at trial, not to make it.” Thus, while a certain degree of judicial intervention in the presentation of evidence is permissible, "the line is crossed when the judge takes on either the function or appearance of an advocate at trial.” These principles apply in bench trials, including juvenile delinquency proceedings. Here, the Family Court Judge took on the function and appearance of an advocate by extensively participating in both the direct and cross-examination of the two presentment agency witnesses and eliciting testimony which strengthened the presentment agency's case. When the appellant indicated, during the course of her direct examination, that a certain document which would support her defense had been turned over to a Probation Department officer, the Judge interrupted her testimony to question a Probation Department Court Liaison who was present in the courtroom about whether documents of this nature would indeed be kept by the Probation Department. The Judge then summoned the Probation Department officer assigned to the appellant's case to the courtroom, and indicated to the appellant's attorney that unless he agreed to stipulate as to what certain Probation Department records would reflect, those records would be admitted into evidence through the Probation Officer's testimony. It was clear from the record that neither the presentment agency nor the appellant's attorney intended to call the Probation Officer as a witness or enter the Probation Department records into evidence, and the stipulation regarding what those records reflected had the effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially "assumed the parties' traditional role of deciding what evidence to present”. The Judge offered no explanation on the record as to why he felt compelled to solicit this evidence. Under these circumstances, a new fact-finding hearing was warranted.
[4] In Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011) at the dispositional hearing the parties stipulated to the admission of the predispositional report, which recommended that respondent be placed on probation for two years subject to various special conditions. Although the parties asked that Family Court accept that recommendation and indicated that they intended to offer no further proof in this regard, Family Court called as its own witness the author of the report and questioned her extensively regarding respondent's prior admission to the local hospital's mental health unit and a subsequent mental health evaluation conducted by the Northeast Parent & Child Society. In response to this testimony, Family Court then indicated that it would not close the proof until it obtained the corresponding records for respondent's admission/evaluation and stated its intent to issue subpoenas to that effect. Following additional discussion, Family Court agreed to accept the discharge summary from respondent's hospital admission and closed the proof. Thereafter, relying almost exclusively upon proof that it elicited, Family Court ordered that respondent be placed with the Office of Children and Family Services until August 31, 2011. The Appellate Division held that Family Court improperly assumed a prosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing. Although respondent did not object when Family Court called the author of the predispositional report as a witness and stipulated to the admission of the discharge summary, thereby rendering this issue unpreserved for review it exercised its discretion and reversed Family Court's order. The Appellate Division observed that Family Court is vested with the discretion to call witnesses, including the author of the predispositional report (see Family Ct. Act §350.4[2] ), and may assume a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact. However, "[t]he overarching principle restraining the court's discretion [in this regard] is that it is the function of the judge to protect the record at trial, not to make it" and the court must take care to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel Roque C., 17 A.D.3d at 1169). Even though the parties agreed with the recommendation made by the Probation Department, Family Court called and extensively questioned the author of the predispositional report, secured the production of additional documentary evidence and then, according essentially no weight to the underlying recommendation and the parties' expressed wishes, crafted a disposition based almost entirely upon proof that it elicited-a practice with which the Court previously had expressed its disapproval (see Matter of Keaghn Y., 921 N.Y.S.2d at 739; Matter of Blaize F. [Christopher F.], 74 A.D.3d 1454, 1455 [2010]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596 [2002]). Family Court's order was reversed and the matter was remitted for a new dispositional hearing before a different judge.
[5] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002).
[6] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-206.
In Bolte v. Third Ave. R. Co., 38 A.D. 234, 56 N.Y.S. 1038 (1st Dept., 1899) the Appellate Division held that the action of the trial judge, in practically conducting the plaintiff's case by examining plaintiff and his witnesses while on the stand, as to points not yet touched on by the counsel, by asking them questions which would have been incompetent if asked by plaintiff's counsel, and which were leading and suggestive, warranted a reversal.
[7] Carroll v. Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 841 (1st Dept.,1993)
The same principals apply when a trial judge calls his own witness as when he cross-examines a witness. Trial judges have wide discretion in directing the presentation of evidence but must exercise that discretion appropriately and without prejudice to the parties. Trial courts sometimes must take a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact.[1]
In People v. Arnold, [2] the issue was whether a trial court, in the exercise of discretion, can call its own witness. Defense counsel advised the court that he had a witness outside the courtroom, but after speaking to the witness rested without calling any further witnesses. The court inquired if the witness was outside and then said: ‘All right. I would want to ask him a couple of questions. Bring him in, please.” Defense counsel placed an objection on the record. The trial court gave no reason for calling the witness and did not articulate the consequences of doing so. The court simply called the witness after both sides had rested and had consciously and deliberately chosen not to call him. The Court of Appeals held that under the circumstances of this case, the court abused its discretion as a matter of law. It assumed the parties’ traditional role of deciding what evidence to present and introduced evidence that had the effect of corroborating the prosecution’s witnesses and discrediting defendant on a key issue. Although it did not appear from the record that the Trial Judge intended to give an advantage to either side, he abused his discretion in calling the witness on a key issue when both parties chose not to, and it resulted in prejudicial error. The Court stated: “We do not hold that a court may never call its own witness over the objection of a party. In those unusual circumstances in which a court feels compelled to do so, it should explain why, and invite comment from the parties. In that way, the court can consider what it aims to gain against any claims of possible prejudice. Moreover, an appellate court will have a basis on which to review the trial court's exercise of discretion.”[3] The Court of Appeals observed that a case calling for special expertise, or other such circumstances, may require a trial court to call its own witness, citing as an example Family Ct Act § 350.4 [2].[4] It noted that, even among jurisdictions where a rule of evidence or statute allows a court to call a witness, the practice is “not particularly desirable” and should be engaged in sparingly, so as to retain the court's impartiality. [5]
Counsel should object, with specific objections, if the role of the judge in questioning witnesses goes beyond clarification of the issues and appears to become partisanship or biased. [6]
The court may not call its own witnesses to establish that a witness committed perjury. Conflict in the testimony of witnesses presents a fundamental question of fact for resolution by the court, as the trier of the facts, on the basis of the evidence presented. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Where the record suggests that perjury has been committed, the matter may, in the sound exercise of court's discretion, be referred to district attorneys’ office for investigation. [7]
[1] People v Moulton, 43 NY2d 944, 945 [1978]; People v Jamison, 47 NY2d 882, 883 (1979).
In Kennedy v. Kennedy, 256 A.D.2d 1048, 683 N.Y.S.2d 608 (3d Dept.,1998) the Appellate Division held that questions posed by the trial court to the husband's expert in a divorce action were a proper attempt to clarify the expert's "guarantee" of valuation of marital assets.
In Accardi v. City of New York, 121 A.D.2d 489, 503 N.Y.S.2d 818 (2d Dept.,1986) the Appellate Division held that the trial judge may assume an active role in the examination of witnesses where it is proper or necessary to facilitate or expedite the orderly progress of the trial.
[2] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782, (2002)
[3] People v. Arnold, 98 N.Y.2d 63 745 N.Y.S.2d 782 (2002).
In Matter of Carrol v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 841 (1st Dept, 1993) after both sides rested, the Court indicated an interest in hearing testimony from two witnesses, who resided in Paris, either in person or by way of deposition. When counsel for petitioners protested, the court announced, “Counsel, I am not going to close this proceeding without hearing from Mr. Bernard [Haim] and from Mr. Music. That is my ruling.” In this proceeding pursuant to CPLR article 78, the Appellate Division held that it was beyond respondent's power as a Supreme Court Justice to compel the proposed witnesses, residing in France, to attend at trial in this jurisdiction and give evidence (Constitution Art. 6, § 1; Judiciary Law § 2–b[1] ). Turning to the merits of petitioners' application, it observed that it is well settled that a court may conduct limited examination of a witness to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial. But, by presuming to direct the production of testimony from witnesses neither deposed by the parties nor called by them at trial, the Trial Justice has transgressed the bounds of adjudication and arrogated to himself the function of advocate, thus abandoning the impartiality required of his office. Perjury is a criminal offense, and the examination of witnesses to ascertain whether a basis exists for prosecution is the province of the District Attorney's Office and the Grand Jury, not a civil trial court. Respondent asserted no valid ground for the introduction of the testimony of the proposed additional witnesses into this action. If, in the opinion of the court, a party has failed to introduce sufficient evidence to support the judgment sought, the clear option available to the court is to render judgment in favor of the adversarial party. Similarly, if the testimony of witnesses presented by one party is unworthy of belief, it is incumbent upon the court, as trier of the facts, to make findings in favor of the adversarial party.
In Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011) the child appealed from Family Court order which adjudged her to be a juvenile delinquent. Although her contention that she was deprived of a fair trial because the Judge took on the function of an advocate by excessively intervening in the fact-finding hearing was unpreserved for appellate review, the Appellate Division reached the issue in the exercise of its interest of justice jurisdiction, because the Judge's excessive intervention deprived the appellant of her right to a fair fact-finding hearing. It observed that although trial courts may appropriately take an active role in the presentation of evidence "in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67), the function of the judge is "to protect the record at trial, not to make it.” Thus, while a certain degree of judicial intervention in the presentation of evidence is permissible, "the line is crossed when the judge takes on either the function or appearance of an advocate at trial.” These principles apply in bench trials, including juvenile delinquency proceedings. Here, the Family Court Judge took on the function and appearance of an advocate by extensively participating in both the direct and cross-examination of the two presentment agency witnesses and eliciting testimony which strengthened the presentment agency's case. When the appellant indicated, during the course of her direct examination, that a certain document which would support her defense had been turned over to a Probation Department officer, the Judge interrupted her testimony to question a Probation Department Court Liaison who was present in the courtroom about whether documents of this nature would indeed be kept by the Probation Department. The Judge then summoned the Probation Department officer assigned to the appellant's case to the courtroom, and indicated to the appellant's attorney that unless he agreed to stipulate as to what certain Probation Department records would reflect, those records would be admitted into evidence through the Probation Officer's testimony. It was clear from the record that neither the presentment agency nor the appellant's attorney intended to call the Probation Officer as a witness or enter the Probation Department records into evidence, and the stipulation regarding what those records reflected had the effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially "assumed the parties' traditional role of deciding what evidence to present”. The Judge offered no explanation on the record as to why he felt compelled to solicit this evidence. Under these circumstances, a new fact-finding hearing was warranted.
[4] In Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011) at the dispositional hearing the parties stipulated to the admission of the predispositional report, which recommended that respondent be placed on probation for two years subject to various special conditions. Although the parties asked that Family Court accept that recommendation and indicated that they intended to offer no further proof in this regard, Family Court called as its own witness the author of the report and questioned her extensively regarding respondent's prior admission to the local hospital's mental health unit and a subsequent mental health evaluation conducted by the Northeast Parent & Child Society. In response to this testimony, Family Court then indicated that it would not close the proof until it obtained the corresponding records for respondent's admission/evaluation and stated its intent to issue subpoenas to that effect. Following additional discussion, Family Court agreed to accept the discharge summary from respondent's hospital admission and closed the proof. Thereafter, relying almost exclusively upon proof that it elicited, Family Court ordered that respondent be placed with the Office of Children and Family Services until August 31, 2011. The Appellate Division held that Family Court improperly assumed a prosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing. Although respondent did not object when Family Court called the author of the predispositional report as a witness and stipulated to the admission of the discharge summary, thereby rendering this issue unpreserved for review it exercised its discretion and reversed Family Court's order. The Appellate Division observed that Family Court is vested with the discretion to call witnesses, including the author of the predispositional report (see Family Ct. Act §350.4[2] ), and may assume a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact. However, "[t]he overarching principle restraining the court's discretion [in this regard] is that it is the function of the judge to protect the record at trial, not to make it" and the court must take care to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel Roque C., 17 A.D.3d at 1169). Even though the parties agreed with the recommendation made by the Probation Department, Family Court called and extensively questioned the author of the predispositional report, secured the production of additional documentary evidence and then, according essentially no weight to the underlying recommendation and the parties' expressed wishes, crafted a disposition based almost entirely upon proof that it elicited-a practice with which the Court previously had expressed its disapproval (see Matter of Keaghn Y., 921 N.Y.S.2d at 739; Matter of Blaize F. [Christopher F.], 74 A.D.3d 1454, 1455 [2010]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596 [2002]). Family Court's order was reversed and the matter was remitted for a new dispositional hearing before a different judge.
[5] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002).
[6] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-206.
In Bolte v. Third Ave. R. Co., 38 A.D. 234, 56 N.Y.S. 1038 (1st Dept., 1899) the Appellate Division held that the action of the trial judge, in practically conducting the plaintiff's case by examining plaintiff and his witnesses while on the stand, as to points not yet touched on by the counsel, by asking them questions which would have been incompetent if asked by plaintiff's counsel, and which were leading and suggestive, warranted a reversal.
[7] Carroll v. Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 841 (1st Dept.,1993)
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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