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I was recently party to a preliminary hearing in a criminal case in which a 911 call was played. The content of the 911 call was very beneficial to the defendant. During the hearing, the judge said something to the effect of, "It would be a question for the jury whether the caller was 'being honest.'"

In other words, the judge was suggesting that the caller to the 911 was being disengenuous and deliberately conveying a false impression -- something that I think would never occur to most people because the call seemed completely genuine. Also, the caller would have had no motive to faking their mental state. I got the idea that the judge was looking for some angle to discredit the 911 call out of interest to see the defendant convicted.

In any case, from the judge's remark I got the idea that he might say something like that during the trial, or give the jury an instruction designed to make them think the 911 caller was putting on an elaborate act.

Is a judge allowed to do this?

bdb484
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Cicero
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    What jurisdiction would this be in? Such rules are different in different countries, – David Siegel Oct 21 '20 at 23:42
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    "the judge was suggesting that the caller to the 911 was being disengenuous": no, the judge was pointing out that a determination that the caller was being disingenuous may properly be made only by a jury. The question should only be presented to the jury if one side or the other raises it during the trial. – phoog Oct 22 '20 at 02:04
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    @phoog Well, to use your own words, neither side had brought up the idea the caller was speaking disingenously. It was the judge who first suggested this possibility. – Cicero Oct 22 '20 at 02:29
  • The judge may just be telling someone to slow down and not ask the court to adopt a particular position on the call at this point. Without knowing the context we can't know why the judge said this. – David42 Oct 22 '20 at 14:18
  • @David42 It doesn't matter why he said it. What matters is whether the judge is breaking a rule by making a suggestion of the kind described. – Cicero Oct 22 '20 at 14:25
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    I've only sat on one jury, and I'm not in the US so maybe it's different there, but perhaps worth noting that the jury in my case was not selected until long after the preliminary hearing. Making a comment like this when the jury is not present, and indeed has yet to be selected, would seem to be less problematic than making the same comment at trial. – Steve-O Oct 22 '20 at 14:29
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    @Cicero perhaps you should add that information to the question. The judge's statement could be completely benign in some contexts, so if the actual context suggested it was otherwise, it would help to provide the actual context. – phoog Oct 22 '20 at 18:07
  • @Steve-O indeed. As far as I'm aware it is not unusual for judges to give hints to one side or another if they think the side is missing an obvious element of the case. You can find examples even in oral arguments before the US supreme court. I have no idea how proper or improper it is, nor the extent to which the determination would depend on the specific nature of the judge's interactions with the attorneys. – phoog Oct 22 '20 at 18:12
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    @phoog: In some situations, failure of counsel to do something that obviously should have been done may be a basis for appeal. If a judge sees that counsel is failing to do something, and that such failure might merit an appeal, all parties to the case may be better served by having the judge take the action preemptively than by having the action go undone, leading to an appeal that necessitates a new trial where the action is done properly. – supercat Oct 22 '20 at 19:11
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    The only parties to are the defendant and the state. The DA can be considered a party in that they are representing the state, but if you were a DA, you probably wouldn't be asking this question. So that leaves the possibilities that you are the defendant, or you are using "party" incorrectly. If you are a defendant in a criminal trial, you should have counsel that you can discuss matters such as these. If you are not in fact a party, it would be helpful to have some idea of in what capacity you were there, as that would be informative as to what sort of context you might have observed. – Acccumulation Oct 23 '20 at 00:23
  • Shouldn't that possibility be raised by the prosecutor instead of the judge? What was the prosecutor doing? – stackoverblown Oct 23 '20 at 12:11

5 Answers5

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It is the jury's job to evaluate the credibility of the witnesses, and it is the judge's job to inform them of that responsbility.

It is not appropriate, however, for the judge to indicate to the jury what answer they should come to on those questions.

In Quercia v. United States, 289 U.S. 466 (1933), the defendant in a drug case took the stand to deny the charges. Before the jury went to deliberate, the judge made the following observation:

I am going to tell you what I think of the defendant's testimony. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don't know, but that is the fact. I think that every single word that man said, except when he agreed with the Government's testimony, was a lie.

The jury convicted, but the U.S. Supreme Court reversed, holding that the instruction was an error. It said that the judge has the right, generally speaking, to comment on the evidence, but that right is not unlimited, because juries are likely to be swayed by the judge's assessments, even if he instructs them to make their own decisions:

The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence should be so given as not to mislead, and especially that it should not be one-sided; that deductions and theories not warranted by the evidence should be studiously avoided.

The comment you seem to be imagining is a closer call than this, but I think most judges would agree it would be inappropriate.

At a preliminary hearing, though, where there is no jury, there is no real problem with the judge making that comment. If I were the defense attorney, I'd be glad he did, as it would help inform my decision about whether to pursue a jury trial or a bench trial.

bdb484
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    Your last paragraph is the key here. This is a preliminary hearing, not a trial. The goal is simply to establish whether there's enough evidence to proceed to a trial. In that context, the judge's comment seems on-topic. Whether the jury thinks the defendant is guilty is irrelevant. It would be another thing entirely if this was a trial to establish guilt. – bta Oct 22 '20 at 17:00
  • "it would help inform my decision about whether to pursue a jury trial or a bench trial": why? If it's a bench trial, findings of fact fall to the judge in the absence of a jury. It's not like a bench trial would foreclose the possibility of arguing that the 911 call was staged. – phoog Oct 22 '20 at 18:13
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    @phoog It kind of would though - if it goes to bench trial, you could reasonably assume the judge would not give the call the same weight the defense believes it should receive. Going to jury trial increases the odds the call will receive that weight. – corsiKa Oct 22 '20 at 19:26
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    The comments about the "hand wiping" would to me be "pseudo-scientific mumbo-jumbo". All respect for that particular judge gone. Neither side asked him to come forward as an expert witness. – gnasher729 Oct 22 '20 at 20:39
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    @corsiKa Exactly. If the judge thinks my star witness is not credible, I definitely don't want a bench trial. – bdb484 Oct 22 '20 at 21:33
  • The judge has a duty to explain the relevant law to the jury, and (at least in the UK) to indicate how the witness testimony is relevant to the law and the key factual issues that the jury need to decide upon in order to apply the law. It would certainly be appropriate for a judge to point out that "since witnesses A and B contradict each other on a key point of evidence, at least one (and possibly both) of their statement is incorrect", but it would be inappropriate for the judge to give an opinion over which of them was true and which was false. – alephzero Oct 23 '20 at 15:27
  • @alephzero: IMHO, such an instruction might be particularly apropos if e.g. one of the witnesses was a cop. In fact, I think some more detailed instructions might be appropriate if a witness would appear to be an authority, e.g. "Police officers, like other witnesses, should generally be presumed to be telling the truth, but like other witnesses they may also be mistaken about things or even lie. The fact that a witness happens to be a police officer does not imply that his testimony must be regarded as beyond scrutiny." – supercat Oct 23 '20 at 19:37
  • @supercat Why on earth should anyone presume a police officer is telling the truth? – bdb484 Oct 23 '20 at 21:37
  • @bdb484: The purpose of the suggested instruction is to make it clear that jurors have no obligation to regard officers' testimony as beyond scrutiny. On the other hand, if someone can't reasonably be trusted to give honest testimony, that person shouldn't be employed as a cop. – supercat Oct 23 '20 at 22:06
  • If that's the idea, it seems counterproductive to start from the premise that the police are presumptively trustworthy. – bdb484 Oct 24 '20 at 04:05
  • @bdb484: Some jurors would likely make such a presumption whether or not a judge acknowledge it. For a judge to recognize such a presumption but make clear that it is only a presumption which might be refuted by contrary evidence, would likely cause jurors to be more receptive to the idea of refutation than they would be if the judge didn't recognize the presumption but they made it anyway. – supercat Nov 17 '21 at 21:56
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It is the judge's obligation to instruct the jury w.r.t. believing witnesses. This is the introductory instruction for criminal trials in Washington, which on that topic says

You are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In assessing credibility, you must avoid bias, conscious or unconscious, including bias based on religion, ethnicity, race, sexual orientation, gender or disability. In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things he or she testifies about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.

Some such statement will be made in any trial. There used to be a more specific instruction in witness credibility, but it was withdrawn. The general instruction also says

Our state constitution prohibits a trial judge from making a comment on the evidence. It would be improper for me to express, by words or conduct, my personal opinion about the value of testimony or other evidence. I have not intentionally done this. If it appeared to you that I have indicated my personal opinion in any way, either during trial or in giving these instructions, you must disregard this entirely.

Except for Texas and West Virgina, all states have such instructions. If a judge went off the rails and said "You are going to have to decide if you believe all that stuff that Smith said", that would be reversible error. The judge may not imply belief or disbelief, and may not make comments that tend to favor the defense vs. the prosecution.

user6726
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There is a concept of implicature that says that meaning is conveyed not only by the meanings of the words, but by the circumstances that are likely to cause someone to utter those words. There is nothing in the literal meanings of the words that says that the witness is lying. Your belief that it conveys that seems to be based on implicature: the judge would not feel compelled to mention it unless they thought the witness is lying.

However, that is not necessarily the case. Certainly if for one witness and one witness only, the judge were to say this without anything else giving them reason to, it could come across as implying that the witness is untrustworthy. On the other hand, if the judge were to say this each time a witness takes the stand, or say it at the very beginning of the trial and indicate that it applies to all witnesses, or say it when prompted by something more than just the witness testifying, such as a party asking the judge to make a decision that they believe relies on an assertion of fact, then this inference is less valid.

Acccumulation
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In the US, in most if not all states, the Judge at a jury trial may not comment in such a way as to indicate a belief in the truth or falsity of testimony or the guilt or innocence of the accused.

I believe the rule is different in the UK and perhaps elsewhere.

However this was not in the presence of a jury.

Addition: This is because in a jury trial, the jury, not the Judge, is supposed to determine the facts. The drafters of US Procedure apparently thought that any comment by the judge would be highly influential with the jury. I think that this was a reaction against 17th C and 18th C British practice.

In England and Wales at least it used to be the case that the Judge would routinely comment on the evidence, both during the course of the trial, and during the "Summing uP" which followed the evidence but I think came before the arguments of the lawyers. I am not sure if theis is still the procedure.

David Siegel
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    "It would be a question for the jury" i.e. the judge is making a strictly factual statement. – Mark Morgan Lloyd Oct 22 '20 at 09:10
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    @MarkMorganLloyd Strictly factual may still be misleading, e.g., "You have heard witnesses A, B, C, and D. As a judge, I am not allowed to and will not comment on the credulity or incredulity of what witness C presented" – Hagen von Eitzen Oct 22 '20 at 10:07
  • But a judge who deliberately made a misleading statement- particularly as part of the formal direction to a jury- would be heading for all sorts of trouble. – Mark Morgan Lloyd Oct 22 '20 at 12:01
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    @MarkMorganLloyd not necessarily. But if the trial ended in conviction there would be a much greater chance that the verdict would be overturned or vacated on appeal. – phoog Oct 22 '20 at 18:17
  • Downvoter: why? – phoog Oct 22 '20 at 18:17
  • @phoog see updated answer above. – David Siegel Oct 22 '20 at 20:09
  • @DavidSiegel: Unfortunately, judges can sometimes act as gatekeepers as to what issues are regarded as "matters of fact". For example, the legality of a search may depend upon a cop's reasons for performing it, but determining whether a cop's claimed reasons match the actual reasons would require assessing witness credibility, which should fall squarely in the "matters of fact" category. If a jury informed of everything leading up to a search wouldn't believe that a cop was telling the truth about the reasons for it, the jury should have a right and duty... – supercat Oct 23 '20 at 19:43
  • ...to disregard anything that was found detrimental to the defendant, even if a judge who believed the cop's testimony should find the search legitimate. Unfortunately, questions related to search legality are generally categorized purely as "matters of law" without regard for whether they would also require evaluating matters of fact. – supercat Oct 23 '20 at 19:45
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Of course he can, but in some jurisdictions he will have to choose his words carefully.

Depending on tone or pace of voice, "it's for the jury to decide (this or that)" will often be heard by the jury to mean "but I don't believe it".

Since the meaning depends on tone or pace of voice, who could ever prove anything against the judge?

Robbie Goodwin
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  • It was a preliminary hearing. No jury is empaneled or participating or present at a preliminary hearing. – DavidRecallsMonica Oct 25 '20 at 01:08
  • Yes and if the yet-to-be jury is denied access to the records of the preliminary hearing, the Question as posed might obviate itself. If the jury did read the record, tone and pace would prolly be lost between the lines but why should that throttle Cicero's feeling that the judge might say something like that during the trial? – Robbie Goodwin Oct 25 '20 at 13:39
  • The prospective jurors or seated jury is not offered access to the transcript of the prelim. One who did the work to obtain a transcript of the prelim (not a trivial task, at least here in California) would be disqualified immediately during the trial's voir dire if they answered honestly the inevitable question about knowing the case. – DavidRecallsMonica Oct 25 '20 at 14:18
  • Yes and the Question was predicated on one thing, clearly summarized at the end: "from the judge's remark I got the idea that he might say something like that during the trial, or give the jury an instruction designed to make them think the 911 caller was putting on an elaborate act.Is a judge allowed to do this?" Don't you see the preliminary hearing as a red herring? – Robbie Goodwin Jan 11 '21 at 11:19
  • The judge is not allowed (in California, anyway) to do this. Of course anyone may "shade" one's remarks to have a second-level meaning. My experience, however, is that judges try to avoid doing so, and those who think they're sly enough to carry it off aren't — their comments are multiple not singular, and clearly perceptible in a trial transcript. – DavidRecallsMonica Jan 11 '21 at 15:44
  • @DavidSupportsMonica I hope we all know the final, summary paragraph - "Is a judge allowed…" - should make the Question void.

    Just because Cicero and bdb484 missed a trick doesn't invalidate the query "Can a judge…"

    Last night I saw a movie with a Federal agent, asked what happened, responding: "I can neither confirm nor deny (what happened, in detail…)"

    Judges are erudite, educated, experienced and well able to make themselves understood by much less obvious means than nods, winks or cheek-tonguing.

    "It's up to the jury…" might often mean "Get real, Jury. Decide it this way!"

     – Robbie Goodwin Jan 11 '21 at 22:41