Court Finds Judge’s Questions to Fingerprint Expert Threw Shade on the Defense, Requiring a New Trial
Federal Rule of Evidence 614(b) states that “[t]he court may examine a witness regardless of who calls the witness.” California does not have a direct counterpart to Rule 614(b), but Section 775 of California’s Evidence Code states that
The court, on its own motion or on the motion of any party, may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by an adverse party. Such witnesses may be cross-examined by all parties to the action in such order as the court directs.
While Section 775 only facially covers a judge calling and questioning her own witnesses, California courts have held that the ability to question witnesses called by the parties is inherent within Section 775. See, e.g., People v. Hawkins, 897 P.2d 574, 589 (Cal. 1995). But, as the recent opinion of Court of Appeal, First District, Division 3, California in People v. Williams, 2021 WL 248773 (2021), makes clear, there are limits on that authority.
In Williams, Malik Williams appealed his felony burglary conviction in which “[t]he entire case against defendant was based upon latent fingerprints found at the crime scene and identified as a match to those of defendant.” After Department of Justice latent print analyst Vivian Zhang testified and was questioned by the parties, the judge asked her the following questions:
“THE COURT: Let me ask you, ma’am, is there anything about the process of testing fingerprints that degrades them?“THE WITNESS: Can you rephrase?“THE COURT: You took these two prints and you evaluated them.“THE WITNESS: Yes, under a glass.“THE COURT: Is there anything about that that destroyed or degraded the image?“THE WITNESS: No.“THE COURT: So, if I wanted to do the same thing, if I wanted to take these two fingerprints and compare them myself, if I wanted to hire someone to do it, they could – they can review the very same thing that you reviewed, correct?“THE WITNESS: Yes.”
The defense then moved for a mistrial, arguing that “[t]he Court was implying as if the defense had an obligation, maybe it should have compared the prints of [defendant] with an expert of their own, and I think that is misleading to the jury and I think it’s denying my client due process of law and implying as though there’s something for the defense to prove, when there’s not.”
The trial judge denied the motion for a mistrial, but the appellate court later granted Williams. a new trial on this issue on appeal. According to the court,
Balancing the trial court’s ability to question witnesses with the inherent danger of doing so, it is appropriate for a trial judge to participate in the examination of a witness “‘whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.’”…
None of these circumstances is applicable to the trial judge’s questions regarding quality of the fingerprints or ability to hire an expert. The questions did not aid in “preventing misunderstanding” or “clarifying the testimony,” as there was no prior testimony that could have been misunderstood to suggest potential degradation of the fingerprints or lack of availability for re-testing – that was simply not a live issue in the case….Similarly, the questions did not aid in “eliciting the truth” or “covering omissions,” as there was no testimony that brought into question the quality or availability of the fingerprint evidence….Zhang testified that she scanned the latent fingerprints into a computer system, and then reviewed the fingerprints visually with a magnifying glass. She testified that she did not physically mark the fingerprints. Nothing in her testimony suggested that the latent fingerprints were no longer available or were degraded by that process. Finally, while the facts elicited from the trial judge’s questions may have been potentially “material,” they were not material in this case given that the quality of the fingerprint evidence was not in dispute….
Not only did these questions fall outside the ambit of appropriate circumstances for examination by a trial court, but they also did not reflect an attempt by the court to “fairly” aid in eliciting testimony….Here, the record shows that the questions regarding the quality of the fingerprints and ability to hire an expert were improper on their face. The trial judge asked its initial questions regarding potential degradation of the fingerprints in an apparent effort to lay the foundation for its ultimate question, whether “someone” could be hired to do the same review of the fingerprints that Zhang had done. The trial judge’s reasoning that the question was proper because he “didn’t say by whom” another expert could be hired is utterly unpersuasive: other than defendant, there was no other party who could have hired an expert. The only import of the trial judge’s question was that defendant could have hired an expert, but did not do so.
By asking these questions, defendant argues on appeal that the trial court deviated from judicial impartiality and improperly assumed the role of the prosecution to develop evidence on its behalf. The Attorney General does not directly respond in its briefing on appeal, instead arguing that the court’s questions were to “clarify” Zhang’s testimony that she performed a visual comparison and did not physically mark the fingerprints. On the motion for mistrial, the trial court similarly reasoned that its questions were proper because the record was “incredibly unclear” about the state of the fingerprint exhibit. Such statements are entirely inaccurate. As described above, there was no dispute as to the quality or availability of the fingerprints and thus there was no need to “clarify” any testimony. Even if there had been some clarification needed as to potential degradation of the fingerprints, the trial court’s final question regarding the hiring of another witness had no proper purpose. Instead, the question bolstered the testimony of Zhang and highlighted defendant’s failure to hire an expert without having another, proper, purpose. In so doing, the trial judge improperly “align[ed] himself with the prosecutor in the minds of the jury.”
-CM