Is how one of my favorite evidence blog prof’s describes a First Circuit case. I have previously commented on the issue in relation to MJ McDonald’s Army Lawyer article.
Federal Rule of Evidence 605 provides that
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that
Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let’s consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).
And here is how Professor Miller concludes the practical question of what to do rather than what’s the rule.
If a judge is testifying and a party objects, I could see the judge feeling that his integrity had been attacked. It seems to me, however, that the judge would mostly feel that his competence had been attacked and not that he was favoring one side over the other. And, of course, if the judge were indeed testifying, it would be clear that he made a mistake, and the trial could move on.
But, if a judge engages in overly aggressive interrogation and a party objects, it is hard to see how the judge could take the objection as anything but the party calling his integrity into question. Moreover, because it is not a black and white issue like judicial testimony, it is easy to see the objection having lingering effects. I thus don’t see why an objection to judicial interrogation is required by an objection to judicial testimony is not.