Individuals facing Washington criminal charges have a due process right to a “fair trial in a fair tribunal.” A person’s due process rights may be violated if the court acts as an advocate instead of a neutral arbiter. A juvenile recently challenged his conviction after the trial judge questioned the prosecution’s witnesses.
The 15-year-old juvenile was charged with escape in the second degree. The state alleged he had “knowingly escape[d]” from home custody.
Witnesses
A community placement specialist testified about ankle monitor technology and electronic home monitoring (“EHM”). He was asked on cross examination if he remembered going over the contract with the juvenile or if his answers were based off the reports. He testified that he “felt” like he had, but could not say so for certain.
The court questioned the witness. The court asked how he recognized the juvenile, and he said he had worked with him over the last year and a half. He said he did not place the ankle monitor on the juvenile at his previous placement in September 2021, but was there. When the court asked if he specifically remembered telling the juvenile what would happen if he cut the bracelet, he said he did. He stated he had reviewed reports by the community surveillance officer before he testified.
The defense moved to strike the witness’s testimony because did not have independent recollection and instead relied on hearsay. The trial court struck only the portion of the witness’s testimony that relied on reports.
A corrections sergeant testified he reviewed paperwork when someone violated their EHM conditions. According to the appeals court, “the State struggled on direct examination.” When asked, the prosecutor told the court she was trying to establish the crime occurred in Washington. The court then questioned this witness regarding his role and asked about the geographic jurisdictional boundaries. He responded that was based on whether the person was in their custody when the violation occurred.
A community surveillance officer testified about the EHM alert system and the documents produced when it alerts. The defense objected to introduction of the juvenile’s activity summary as a business record. The court agreed there was a lack of foundation, but then questioned the witness.
In response to the court’s questions, the community surveillance officer testified she generated the report and the information came from the tracker. The court also asked if she tried to contact the juvenile and if she was able to confirm the information was consistent. The trial court concluded there was “sufficient indicia of reliability” and admitted the report into evidence as a business record.
The witness testified there was an alert for “a strap tamper and proximity tamper,” which she said indicated the strap was cut.
The defense asked the court to strike the response as to what the alert indicated, but the court instead questioned the witness. The court asked if there were multiple possibilities for the alerts. The witness said there “only one,” and that it meant “it was cut.” After its questions, the court overruled the objection.
The defense also objected to testimony from the witness about what the juvenile’s father said. The court again questioned the witness and obtained foundation to allow the testimony as a present sense impression.
After the defense objected to introduction of the juvenile’s EHM contract for lack of foundation, the court also questioned the prosecution’s fourth witness, another community surveillance officer. She did not remember this placement but had signed the contract. The court asked if she would normally sign a contract if she was not present when it was signed, and she said she would not. The court asked if it was official protocol to only sign if the signatures were witnessed and she said it was. The court asked if she followed protocol and she responded “Yes.” The court allowed her testimony, and then after another objection and more questions from the court, also admitted the exhibit.
During cross-examination, the witness testified she did not remember the placement. The court then asked a number of additional questions, including what she went over when summarizing the contract. The witness said they went over “going out of ranges” and curfew. The court asked why that was important. The court asked if she specifically explained what could happen if they tamper with or cut the bracelet. She said if they cut off the bracelet, “they would be placed on escape status and a warrant would be issued.”
The defense objected to the court’s questions. The court ultimately decided to strike the last witness’s responses to the questions the court asked after cross-examination.
The Juvenile’s Appeal
The court adjudicated the juvenile guilty, and he appealed. The juvenile argued he was entitled to a new trial because the judge violated his due process rights by eliciting testimony to prove necessary elements of the crime and assist the state in admitting evidence.
The state argued the juvenile failed to preserve the due process error, but the juvenile argued that the court’s failure to be neutral constituted a manifest error affecting his constitutional rights.
Pursuant to RAP 2.5(a), a party may raise a “manifest error affecting a constitutional right” for the first time on appeal. A party claiming manifest error must show actual prejudice, which requires a plausible showing there were practical and identifiable consequences of the alleged error. The appeals court must consider whether the trial court could have corrected the error in light of what it knew at the time.
The juvenile argued the prosecution may not have met the foundational requirements to admit the evidence without the assistance from the court. The community placement specialist said he did not have “specific recall” of a conversation with the juvenile before he was placed on EHM in September 2021. The court’s questioning led to testimony that the juvenile had previously been told about the EHM conditions and requirements. When the court did not understand the prosecutor’s efforts to establish that the crime occurred in Washington, it questioned the witness. The court also questioned witnesses to establish foundation to admit evidence and determined testimony could be allowed under a hearsay exception based on testimony it had elicited.
The appeals court concluded there were practical and identifiable consequences in the trial.
Judges may question witnesses to clarify evidence, control presentation of the evidence, avoid unnecessary repetition, and hold the attorneys to its evidentiary rulings. A judge questioning a witness can be improper, however, if the record shows the judge had actual bias or if the appeals court determines the judge’s actions displayed an appearance of partiality or advocacy to the jury. The appeals court noted there is less concern about a judge’s comments regarding evidence in a bench trial because there is a presumption the judge will disregard improper or inadmissible evidence.
The appeals concluded the judge’s questions “were not just clarifying questions, they were a series of questions specifically intended to elicit testimony to lay the foundation to admit an exhibit or testimony in response to defense objections.” Furthermore, the court had “relieved the State of its burden” to lay foundation and establish admissibility of evidence. The appeals court concluded the trial court had questioned all four of the state’s witnesses “to assist in eliciting testimony it then relied on to both admit evidence over defense objections and adjudicate a finding of guilty.” The appeals court determined the cumulative effect of the court’s actions caused it to become an advocate.
The appeals court reversed and remanded the case for a new trial with a different judge.
Call a Washington Criminal Defense Attorney
This case shows how a judge may overstep in questioning witnesses, even in a juvenile’s bench trial. If your child is facing criminal charges, a Washington juvenile defense attorney can help. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.