Supreme Court of Idaho Surveys How Other Courts Have Interpreted Rule 605’s Limitation on Judicial Testimony

Similar to its federal counterpart, Idaho Rule of Evidence 605 provides that

The presiding judge may not testify as a witness in the trial. A party need not object to preserve the issue.

The recent opinion of the Supreme Court of Idaho in State v. Augerlavoie, 2023 WL 8444524 (Idaho 2023), doesn’t break any new ground, but it provides a useful summary of how other courts have interpreted the term “testify” in Rule 605.

Bypassing the specific issue in Augerlavoie, here is the court surveying how other jurisdictions have interpreted Rule 605:

Both parties note on appeal that other jurisdictions have interpreted their version of Rule 605 broadly to encompass much under the rubric of sworn trial testimony. Since no Idaho case is directly on point, Augerlavoie advocates that we apply sister-state and federal jurisprudence in resolving this question. He first suggests that we apply Nebraska’s approach. In State v. Rodriguez, the Nebraska Supreme Court held that a trial judge’s conduct amounted to testimony from the bench when the judge overruled an objection on coaching and stated that he “had been watching [the attorney] and [the attorney] had not coached [the] witness.” 244 Neb. 707, 509 N.W.2d 1, 4 (1993). The Nebraska Supreme Court held that when the judge relayed that information, the judge assumed the role of a witness by presenting his own observations….The main rule from this case is that Rule 605 applies to situations in which the trial judge interjects facts into the record from the bench, not just when he formally gives testimony under oath.

In addition to Nebraska, Augerlavoie also offers the Texas Criminal Appeals court’s approach to Rule 605 challenges. That court stated the scope of review as follows: “The question should be whether the judge’s statement of fact is essential to the exercise of some judicial function or is the functional equivalent of witness testimony.” Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990)….The Texas court concluded that a judge having the court clerk call jurors during an evening recess in the trial to notify them that the defendant had absconded was not inappropriate, where the “trial court believed appellant personally had access to ‘names and addresses of the jurors.’”…The court concluded it could not “say it was inappropriate for the trial judge, upon learning of appellant’s escape, to be concerned for the safety of jurors, and to act promptly on that concern.”…Under the circumstances, the court held “that in instructing the clerk to inform jurors of appellant’s escape, the trial judge acted within his judicial capacity, and did not ‘testify.’”…

Augerlavoie also points out that some federal courts have held that, rather than analyzing the issue directly under Rule 605, a judge’s factual commentary or interjections from the bench are more appropriately addressed under the rules governing a judge’s power to comment on the evidence and the inherent limitations on this power. See, e.g., United States v. Paiva, 892 F.2d 148, 158–59 (1st Cir. 1989) (“A federal district court judge retains the common law power to explain, summarize and comment on the facts and evidence,” but “[i]f a judge exceeds the limitations on his power to comment and to question, such action may constitute prejudicial error and require reversal.”); United States v. Valentine, 70 Fed. Appx. 314, 324 (6th Cir. 2003) (quoting Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) (“[A] judge may help the jury by ‘explaining and commenting upon the evidence.’ However, ‘[i]n commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it.’ ”)). Indeed, the United States Supreme Court applied this standard in Quercia to hold that judicial commentary about how a defendant’s wiping of his hands while testifying was behavior classically indicative of lying was not proper judicial commentary on the evidence, but was a highly prejudicial interjection of the judge’s own experience, “with all the weight that could be attached to it, in the scale against the accused.” Id. at 471, 53 S.Ct. 698. The trial judge’s conduct led to reversal of Mr. Quercia’s conviction.

Augerlavoie also cites the approach taken by the Indiana Court of Appeals, as a way to “harmonize these approaches.” See Ferguson v. State, 40 N.E.3d 954, 957 (Ind. Ct. App. 2015). There, the court noted that “[t]he reason for the broad rule [(605)] prohibiting a judge from testifying as a witness in a trial or a proceeding over which he or she is presiding is that taking the role of a witness is inconsistent with the judge’s customary duty of impartiality.” Id. But the court recognized that the question is much more nuanced when a judge does not step down from the bench, get sworn in and take the witness stand. In those circumstances, which the court referenced as the judge becoming a witness in “less overt ways,” the court held that Rule 605 should be interpreted the same way as the federal standard cited immediately above….That is, resolution of the question whether the judge has become a witness in one of those “less overt ways” often involves analysis falling under judicial fair comment and not the evidentiary rule. Error is found where the judge’s comments add to the evidence and are not merely summarizations of or fair comment on evidence already adduced at trial….We find this approach to be sound, and we adopt it for application in nuanced cases like this one.

In Ferguson, the trial judge made the following statement after granting a defense motion to strike:

Ladies and gentlemen, you know, you’re to—you’re to base your decision on the testimony that you hear and see today. And you’re to make your decision as to the credibility of each witness, all right. The opinions of other people, though heartfelt, are not something you can consider, all right….

After the jury found the defendant guilty, he appealed, asserting that the judge’s use of the words “though heartfelt” in referring to the opinions of others amounted to the judge offering testimony in violation of Indiana’s Rule 605. The court rejected this argument and affirmed Ferguson’s conviction, holding that the trial court’s use of “though heartfelt” was not testimony and was not improper comment on an issue to be decided by the jury. The court pointed out that “[t]he trial court instructed the jury not to consider the opinions of others as to the credibility of witnesses. ‘Though heartfelt’ emphasized the instruction by saying it was not relevant how ‘heartfelt’ the opinions may have been.” 

-CM