JUDICIAL RESPONSE TO BIAS STATEMENTS OF WITNESSES
From MN Bench Book - Trial Procedures & Practices for Judges
JUDICIAL RESPONSE TO BIASED STATEMENTS MADE BY WITNESSES
The issue of race “must be confronted whenever improperly raised in judicial proceedings. Even statements made without a biased intent may have a negative effect when it comes to issues of race.”
To raise the issue of race is to draw the jury’s attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.
Statements by witnesses that express racial, gender or other biased statements are among the most complex and difficult courtroom behaviors a judge must deal with. Witnesses, compared to other persons in the courtroom, are more likely to make biased statements because they are not officers of the court and are not trained in courtroom behavior and decorum. Judges are required to immediately respond to biased statements made by attorneys or court personnel. However, the question of when, or even if, a judge should respond to a biased statement made by a witness is much more complex.
- It is the responsibility of the trial judge to attempt to eliminate, both in chambers and in the courtroom, bias or prejudice due to race, sex, religion, national origin, disability, age, or sexual orientation. The judge should also avoid bias in hiring, and strive to achieve diversity in his or her staff.
When any individual engages in race-based misconduct it undermines the ideals of a society founded on the belief that all people are created equal. When the person who engages in this misconduct is an officer of the court, the misconduct is especially troubling. Left unchecked, such racially-biased actions as we have here not only undermine confidence in our system of justice, but also erode the very foundation upon which justice is based.
We can identify and distinguish different types of biased statements a witness can make. If a witness’s testimony describes (quotes) statements or conversations that the witness made, or heard someone else make, at an earlier time, and the testimony contains a biased statement, it is not be necessary for the trial judge to respond. The statement itself is evidence and, if relevant and not excludable as hearsay, is admissible. A witness’s biased statement made during their testimony that is not relevant prior verbal conduct is not relevant to the issues involved in the trial. The trial judge should respond to this type of biased statement. The ultimate harm and consequence of a judge’s silence in the face of a witness’s biased non-relevant statement may be that judge’s “silence will be taken as acceptance” by others in the courtroom.
Before the recent focus and concern on the part of courts about eliminating bias in the courtroom, many judges did remain silent in the face of biased statements by witnesses. They applied the traditional rule of witness credibility and refrained from commenting on a biased statement. The traditional rule, an example of which is Minnesota Jury Instruction Guide-Criminal 3.12, states that jurors are entitled to assess, evaluate and judge a witness’s credibility based on: “their manner and appearance… frankness and sincerity…and any other factors that bare on believability and weight.” Additionally, and in consideration of the rule, judges in the past may have refrained from commenting on the biased statement of the witness because of concerns about commenting on the witness’s credibility in front of the jury and of shaping the witness’s further testimony in the current case if, as a result of the judge’s comments, the witness refrained from future biased statements. One of the complexities of this dynamic is the problem that occurs if the witness making the biased statement is the defendant or one of the defendant’s witnesses. A judge’s commenting on the biased statement of a defendant or a defense witness could negatively effect the jury’s perception of that witness. On the other hand if the judge’s admonition caused a witness to refrain from subsequent biased statements, the jury might see the witness’s subsequent testimony as more credible. Thus the judge’s intervention may increase or decrease the ability of a defendant to obtain a fair trial.
Almost all judges prohibit witnesses from using profanity in their testimony. Profanity is allowed if it is relevant prior verbal conduct. It is relevant prior verbal conduct if a witness’s testimony describes (quotes) the relevant statement(s) or conversation that the witness made or heard someone else make at some prior time, and such testimony contains a profanity. In all other situations where, gratuitously, a witness uses profanity in their testimony the trial judge stops the witness and, in the presence of the jury, instructs the witness to refrain from the future use of profanity. The jury may interpret the judge’s comments as commenting on the witness’s credibility. To the extent that the witness refrains from the use of subsequent profanity the judge is also shaping the witness’s subsequent testimony. On an even broader level, judges routinely exclude (strike and instruct the jury to disregard) testimony if it is not relevant or if its prejudicial effect out-weights its probative value. Exclusion in the presence of the jury can have the effect of the jury perceiving the judge as commenting on the credibility of the witness.
RECOMMENDED JUDICIAL RESPONSE TO BIAS STATEMENT OF WITNESSES
Judicial silence in the face of a biased non-relevant statement of a witness is no longer acceptable.
Judges should immediately respond, in the presence of the jury, to a bias statement made by a witness whether called by the state or defense (other than the defendant). See below for how a judge can respond to a bias statement of a defendant. The response to a bias statement of a witness, other than the defendant, can take a variety of forms. The judge can stop the witness and direct the proponent to rephrase the question. The judge can tell the witness that such comments are not appropriate in a courtroom. The judge can tell the proponent to ask another question. The blatant racism or gender bias inherent in such a statement requires the court to address it immediately. Many judges believe that a delayed, and out of the presence of the jury, judicial response is too complicated, and could result in persons who were present in the courtroom when the statement was made not hearing the judge’s delayed response. Judges stop many non-bias instances of verbal and non-verbal behavior (gratuitous profanity, shouting etc.) because of the necessity of requiring and maintaining respect for the forum. Clearly a bias statement shows disrespect for the forum as well as disrespect for the group that is the subject of the bias statement. Immediate judicial response is necessary and appropriate.
If the judge responds to a witnesses bias immediately, the judge should not tell the jury to disregard the statement. This allows the opposing attorney to use such comments in cross examination and comment on the bias statement in final argument. The immediate response also allows others present in the courtroom to hear the judge responding to the statement. This response is appropriate and does not raise any “interference with the defense” issues if the witness has been called by the state. The issues are more complex when the defendant makes the bias statement. In that situation perhaps the judge should admonish defendant outside presence of jury and speak to jury about statement after jury has reached a verdict. The clearest case for doing so is when a defendant, who is testifying, makes a bias statement. Responding to a bias statement of a defendant in this manner allows the state to cross examine the defendant and comment on the defendant's bias.
STATE v. VARNER, 642 N.W. 2d 305
"The issue of racial or ethnic bias in the courts … is an issue that must be confronted whenever improperly raised in judicial proceedings." We believe that these words apply in full force to the case at hand.
Bias often surfaces indirectly or inadvertently and can be difficult to detect. We emphasize, nonetheless, that the improper injection of race "can affect a juror's impartiality and must be removed from courtroom proceedings to the fullest extent possible." Affirming this conviction would undermine our strong commitment to rooting out bias, no matter how subtle, indirect, or veiled. Accordingly, in the interests of justice and in the exercise of our supervisory powers, we reverse appellant's conviction and remand for a new trial.
ALTERNATE VIEW REGARDING JUDICIAL RESPONSE TO BIAS STATEMENTS OF WITNESSES
When a witness makes a biased statement the judge should not respond in the presence of the jury. However, when the witness is finished testifying the judge should direct the witness to remain in court. The judge should do the following: 1) excuse the jury, 2) speak to the witness in open court, and 3) inform the witness that the biased statement(s) are unacceptable and that the witness should refrain from making them in the future when testifying. If the judge does this in open court, members of the public will have an opportunity to hear the judge respond to the biased statement, and the judge’s prior silence during the witness’s testimony will not be taken as acceptance. When the jury finishes deliberating and delivers its verdict, the judge should keep the jury together and inform them that the court heard the biased statement of the witness and purposely did not comment on it during the trial when the statement was made. The judge should then explain that his or her reason for not doing so was that the law allows the jurors to determine credibility of a witness based on what they say and do on the stand. The judge should then tell the jury that the he or she spoke with the witness out of the presence of the jury and informed the witness that biased statements are unacceptable and that the witness should refrain from making them in future. The judge can add additional comments about how concerned the court is about bias in the courtroom and explain that what the court did in this case, i.e., taking time to speak to the witness who made the biased statement and to speak to the jury now is an indication of how serious the court is about eliminating bias in the courtroom.
If the judge is hearing a matter as the fact finder he or she can interrupt the witness, after a biased statement is made and inform the witness that such statements are unacceptable.
As the fact finder the judge also must make credibility assessments. The judge can include in the findings, a statement that a judge is required to make when acting as the fact finder, that the bias statements did or did not affect the degree of credibility the judge determined the witness to have.
The important point in judge or jury cases is that the judge should speak out in open court and state that biased statements are unacceptable in our court system.
A related issue, which in many cases involves implicit racist verbal behavior, is allowing attorneys to refer to a witness by his or her 1st name. This should not be allowed. Many jurisdictions’ Rules of Decorum prohibit doing so. An attorney using a first name with an adult black witness raises the historical specter of whites calling adults blacks by their first name, even if they didn’t know them well or if the person was elderly or a professional. This speech pattern was used as a way of demeaning, disrespecting and diminishing the black person. Some attorneys would call all white witnesses by their last name but call black adult witnesses by their first name. The use of first names is a subtle but powerful act of racism. Judges should not allow attorneys to refer to any adult witness by their first name.
ABA PROFESSIONAL STANDARDS
- Special Functions of the Trial Judge
- PART I. BASIC DUTIES
- Standard 6-1.1. General responsibility of the trial judge
(a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.
See Watkins, 526 N.W.2d at 641-42 (bailiff’s use of racial epithet and jurors’ repeated use of epithet during deliberations entitled defendant of disparaged race to a new trial when remarks were severe, significant number of jurors heard remarks, evidence did not weigh heavily against defendant, and court had no opportunity to take measures to cure prejudice).
- State v. Varner, 643 N.W.2d 298, 305 (Minn. 2002) (requiring a new trial where the district court failed to question jurors about the effect of hearing one juror’s racially derogatory comment). State v. Mitchell A08-0464
- Id. at 304 (citing McFarland v. Smith, 611 F.2d 414, 417 (2nd Cir. 1979)).
- ABA PROFESSIONAL STANDARDS, Special Functions of the Trial Judge, Standard 6-1.6. Duty to maintain impartiality
- In re Charges of Unprofessional Conduct Contained in Panel File 98-26. 597 N.W.2d 563 (Minn. 1999)
- See Salitros, 499 N.W.2d at 820 (reversing the conviction prophylactically in the exercise of the court's supervisory power and in the interests of justice); State v. Kaiser, 486 N.W.2d 384, 387 (Minn.1992) (same); see also State v. Glaze, 452 N.W.2d 655, 662 (Minn.1990) (concluding that a new trial was not warranted but emphasizing that "[p]rosecutors are officers of the court …and we will not hesitate in a suitable case to grant relief in the form of a new trial").