The opinion of the court was delivered by: Hon. Gerald E. Rosen
ORDER REGARDING DEFENDANT'S OBJECTIONS TO THE COURT'S DECISION TO CALL A WITNESS PURSUANT TO FED. R. EVID. 614
At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on March 16, 2010
By order dated February 10, 2010, the Court invoked its authority under Fed. R. Evid. 614(a) to call a witness, co-defendant Shahin Judeh, to testify at the criminal bench trial of Defendant Alberto Flores. Through the present submission filed on March 3, 2010, Defendant objects to this decision, primarily on the ground that it threatens to impermissibly transform the Court from its proper judicial role into the role of advocate. For the reasons stated briefly below, the Court finds no merit in Defendant's objections.*fn1
As noted, Defendant's challenge to the February 10 order rests almost entirely on the premise that "[b]y calling its own witness, particularly when both parties have chosen not to call that witness, the trial judge assumes the advocacy role traditionally reserved for counsel." (Defendant's Objections at ¶ 8.) Yet, it is clear that this premise, taken to its logical conclusion, would wholly abrogate Rule 614(a) - a court, after all, would have no need to invoke this Rule if one of the parties planned to call the witness in question. Defendant has not cited any authority in support of his request that the Court disregard the authority expressly conferred under Rule 614(a). To the contrary, the Sixth Circuit has affirmed the district courts' authority to call witnesses in criminal cases, see United States v. Rosinski, 487 F.2d 822, 823-24 (6th Cir. 1973), and a number of other circuits have similarly upheld a district court's application of Rule 614(a) in a criminal case, see, e.g., United States v. Time, 21 F.3d 635, 639 (5th Cir. 1994); United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989); United States v. Leslie, 542 F.2d 285, 288-89 (5th Cir. 1976); United States v. Tchouateu, No. 94-3049, 1995 WL 650118, at *1 (D.C. Cir. Sept. 19, 1995). Thus, the Court is confident that it possesses the authority to call a witness in this case, should the circumstances warrant this measure.
To be sure, and as this Court fully recognizes, the authority conferred under Rule 614(a) must be exercised with care. Most prominently, there is a danger that a jury might give greater weight to the testimony of witnesses called by the court, as opposed to the parties' witnesses. See United States v. Karnes, 531 F.2d 214, 217 (4th Cir. 1976); see generally United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979) (noting that "potential prejudice lurks behind every intrusion into a trial made by a presiding judge, because "a trial judge's position before a jury is overpowering") (internal quotation marks and citation omitted)). In this case, however, the Court is serving as the trier of fact, and neither the Defendant nor the Government need fear that a witness called by the Court will be viewed as inherently more credible, or will otherwise be treated more favorably, than the witnesses put forward by the parties.
Consequently, because there is no danger here that a jury will give undue weight to a witness called by the Court, the primary concern arising from the Court's decision to call Shahin Judeh as a witness - and the main concern identified in Defendant's present objections - is that the Court might thereby have departed from its neutral judicial role and assumed the role of an advocate. As Defendant points out, Rule 614(a) provides neither explicit standards nor general signposts for ensuring that a court remains on the permissible "judicial" side of this line, and the case law likewise fails to shed much light on this precise question. Nonetheless, this same potential danger of improper judicial "advocacy" is equally present when a court exercises its authority under Rule 614(b) to interrogate a witness called by one of the parties. In either event, the court's involvement poses the risk of an "appearance of partiality which can easily arise if the judge intervenes continually on the side of one of the parties." Hickman, 592 F.2d at 934. Along the same lines, the Fourth Circuit has emphasized that "[t]rial judges are not backstop counsel, entitled to step in whenever a point may be more eloquently delivered or a tactical misstep avoided." United States v. Smith, 452 F.3d 323, 332 (4th Cir. 2006).
Yet, as illustrated by the abundant case law addressing a trial court's authority under Rule 614(b) to question witnesses, this mere potential for abuse does not dictate that a court altogether refrain from exercising this authority; it merely imposes upon the court an obligation to proceed with care when doing so. See, e.g., McMillan v. Castro, 405 F.3d 405, 409 (6th Cir. 2005); Hickman, 592 F.2d at 932-33; Smith, 452 F.3d at 332-33; United States v. Albers, 93 F.3d ...