South Carolina vs. Federal Rules of Evidence, Take 1: No “Automatic” Objection to Judicial Testimony

Recently, South Carolina decided to adopt the Uniform Bar Exam. As such, law school graduates will no longer need to pass a South Carolina component of the South Carolina bar exam to be admitted to the bar. In place of a South Carolina component, there will be lectures by various people on the differences between South Carolina law and federal law in various practice areas. I will be doing the lecture on South Carolina evidence, so I will be spending the next several posts detailing some of the differences between the Federal Rules of Evidence and the South Carolina Rules of Evidence. 

Federal Rule of Evidence 605 provides that

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

The first sentence of this Rule covers not only judicial testimony but also the functional equivalent of judicial testimony. Some examples include:

-admitting a copy of a temporary injunction signed by the trial court in a civil proceeding between the parties

-calling Walgreen’s and transport officers to determine whether the defendant was malingering his medical condition

-allowing the prosecutor to read into evidence statements that the presiding judge made during the defendant’s suppression hearing.

The second sentence of this Rule

provides an “automatic” objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector.

So, for instance, imagine that Dan is accused of driving from his home in Sleepy Cove to Vince’s house in Castle Stone in 15 minutes and murdering him on the night of August 1st. The defense’s claim is that it takes at least 20 minutes to drive from Sleepy Cove to Castle Stone. At trial, Judge Jones tells the jurors

-“I live in Sleepy Cove, and I can drive to Castle Stone in 13 minutes;”

-“I called my friend, Fred, and he says he drives from Sleepy Cove to Castle Stone in 13 minutes;”

-“I decided to drive between Sleepy Cove and Castle Stone last night, and it only took 13 minutes;” or

-“I plugged in the addresses to Google Maps, and it told me the drive should only take 13 minutes.”*

Typically, immediately after any of these statements, Dan’s attorney would need to object to preserve the issue for appellate review, pursuant to Federal Rule of Evidence 103(a)(1)(A). Federal Rule of Evidence 605, however, provides for an “automatic” objection, meaning that Dan’s attorney does not need to make an actual objection in response to the judge’s statement(s). This is because requiring an attorney to object to a judge’s allegedly improper conduct could place the attorney in an awkward position when dealing with the judge for the rest of the trial.

Meanwhile, South Carolina Rule of Evidence 605 merely provides that

The judge presiding at the trial may not testify in that trial as a witness.

According to the note accompanying the Rule,

This rule is identical to the first sentence of the federal rule and is consistent with South Carolina law providing that a judge may not testify as a witness in a case being tried before that judge.  State v. Bagwell, 201 S.C. 387, 23 S.E.2d 244 (1942). The second sentence of the federal rule dispenses with the requirement of an objection to a judge being a witness. This sentence was deleted as being inconsistent with the law of this state.  See State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).

As this note makes clear, the omission of the second line from the federal rule was not accidental. Instead, South Carolina Rule of Evidence 605 does not provide for an “automatic” objection. As such, a timely objection is still required. Therefore, if Dan’s attorney failed to object in response to the above comment(s) by the judge, the issue would not be preserved for appeal.

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*Arguably, the judge could claim that he was properly taking judicial notice in this scenario.

-CM