No Harm, No Foul?: 8th Circuit Finds No Problem With Judge Giving Prosecution a Helping Hand

When I was a law student, every student teamed up and went against another team in mock trial simulations. In my wife’s trial, her partner and she were defense counsel. After the “prosecutors” in their case rested, my wife and her partner moved for a directed verdict based on failure to present evidence from which a reasonable juror could find guilt beyond a reasonable doubt on each element of the crime charged. The judge in the case said he would have granted the motion in an actual case and asked the “prosecutors” why they hadn’t presented more evidence. Their response: “We were waiting to introduce that evidence during the defense case.” The judge allowed the “prosecutors” to reopen their case as a learning experience but told them that he wouldn’t have given them the same dispensation in an actual case. 

In the recent case, United States v. Never Misses a Shot, 2015 WL 1427370 (8th Cir. 2015), however, the judge gave just such a dispensation to the prosecution. Was this proper?

In Never Misses a Shot, Randy Never Misses a Shot was charged with four counts of sexual abuse perpetrated against minors and one count of such abuse while registered as a sex offender. At trial,

The district court initiated a sidebar conference with counsel following the government’s direct examination of K.I.S., its key witness on Count IV. The court warned the government that it may suffer a directed verdict on Count IV because the government’s questions may not have elicited sufficient testimony establishing all the necessary elements of the charge. The court’s interjection may have prompted the government to strengthen its case by directing counsel to elicit certain additional facts in its reopened direct examination. The jury, however, did not hear the court’s comments.

After the defendant was convicted, he appealed, claiming, inter alia, that it was improper for the judge to give the prosecution such a helping hand. In effect, the Eighth Circuit responded, “no harm, no foul.” Specifically, according to the court,

The jury’s ignorance of the court’s statements is an important factor in determining the actual prejudice suffered and whether the “trial judge probably so impressed the jury with his partiality to the prosecution that this became a factor in determining defendant’s guilt.”…Unlike the cases cited by Never Misses A Shot, the district court did not directly query the witness and “assume the mantle of an advocate.” Consequently, we hold the district court’s statements to government counsel do not amount to an abuse of discretion. The district court’s sidebar did not unfairly influence the jury’s ultimate determination of Never Misses A Shot’s guilt.

I get what the court is saying, and there might not be a legal basis to contradict the district court’s decision. That said, I’m pretty uncomfortable with that decision. Can you imagine if the defense were about to rest, and the judge told defense counsel, “I think the jury’s leaning toward a guilty verdict. You really should think about calling your client to testify?” 

Again, there’s probably nothing legally wrong with such an action. After all, under Federal Rule of Evidence 614, a judge can call his own witnesses and examine witnesses called by either party. But something just feels wrong about a judge telling a party that they should take some specific action because it’s looking like they’re about to lose the case.

-CM