Return to CALJIC Part 14-17 – Contents
F 17.30 n1 Jury Not To Take Cue From The Judge: Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses.
The trial court may comment on the credibility of a witness only when such commentary is necessary for proper determination of the case and to assist the jury in reaching a fair verdict. (E.g., People v. Proctor (92) 4 C4th 499, 542 [15 CR2d 340]; People v. Rodriguez (86) 42 C3d 730, 765-70 [230 CR 667].) When the trial judge praises a prosecution witness, extolling his honesty and good faith to the jury and praises the prosecutor for his good faith in moving for dismissal of the charges against a co-defendant, such comments do not assist the jurors in their determinations but are only intended to commend the officer and the prosecutor for fulfilling their duties. Such comments improperly throw the court’s judicial weight into the scales in favor of the prosecution. “Our courts have on many occasions pointed out the duty of a trial judge before a jury, both in criminal and civil cases, not to do anything which would lead the jury to believe that the judge was of the opinion that one party or the other should receive the verdict, nor to appear to throw his [or her] judicial weight on one side or the other. [Citations.] These cases reiterate the fact that jurors are eager to find, and quick to follow, any supposed hint of the judge as to how they should decide the case.” (People v. Cole (52) 113 CA2d 253, 261 [248 P2d 141]; see also, Witkin & Epstein, Cal. Criminal Law (2d Ed. 1989) Trial, § 2893, p. 3535, and cases cited therein; People v. Frank (25) 71 CA 575, 578-80 [236 P 189] [trial judge erred in allowing his and the prosecutor’s praise of two prosecution witnesses as true patriots who had commendedly performed their civic duties as witnesses of high standing, placed on the record in a preliminary hearing, to be read to the jury at trial].) [An unpublished opinion in People v. Pacheco UNPUBLISHED (5/2/96, E015347) reversing in part for improper judicial praise of a witness and the prosecution is available to FORECITE subscribers. Ask for Opinion Bank # O-204.]
F 17.30 n2 Jury Not To Take Cue From The Judge: Judge Should Not Personally Attack Defense Attorney.
Just as it is improper for the judge to improperly praise the prosecutor or the prosecution witnesses (see FORECITE F 17.30 n1), so too is it improper for the judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial. (See People v. Fatone (85) 165 CA3d 1164, 1174 [211 CR 288].) Even if the prosecutor has correctly objected to conduct by the defendant’s attorney, that would not justify reprimanding defense counsel before the jury. “When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.” (Ibid. at 1175; but see People v. Chong (99) 76 CA4th 232 [90 CR2d 198] [judge may reprimand attorney in presence of jury if necessary to “preserve the integrity of the judicial process”; CJ 17.30 is presumed sufficient to preclude any prejudice from reprimand of defense counsel in the presence of the jury ]; People v. Carpenter (97) 15 C4th 312, 353 [63 CR2d 1] [court commits misconduct only “if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression [that the court] is allying itself with the prosecution”].)
If a judge makes hostile and disparaging comments or otherwise exhibits bias against the defense, counsel must object and seek a jury admonition concerning the behavior to preserve the issue for appeal. (See People v. Fudge (94) 7 C4th 1075, 1108; People v. Wright (90) 52 C3d 367, 411; People v. Snow (2003) 30 C4th 43, 78 [because counsel failed to object to, or seek a jury admonition regarding, any of the instances of alleged judicial intemperance, the issue is waived on appeal].)
F 17.30 n3 Jury Not To Take Cue From The Judge: Reactions To Evidence Must Be Disregarded.
(See FORECITE F 1.00i.)
F 17.30 n4 Improper For Trial Judge To Direct Jury To Matters Adverse To The Defense In Guise Of “Comment On The Evidence.”
The trial judge cannot become an advocate in the guise of commenting on the evidence. (People v. Cummings (93) 4 C4th 1233, 1305 [18 CR2d 796].) The comments of the judge must be fair, objective and impartial. (People v. Moore (74) 40 CA3d 56, 65 [114 CR 655].) As our Supreme Court has made clear, “a trial court that chooses to comment to the jury must be extremely careful to exercise its power ‘with wisdom and restraint and with a view to protecting the rights of the defendant.'” (People v. Cook (83) 33 C3d 400, 408, [189 CR 159].) “[J]udicial comment should be temperate rather than argumentative and the trial court must avoid engaging in partisan advocacy.” (Id; see also People v. Wright (88) 45 C3d 1126, 1136 [248 CR 600].) Hence, the trial court “may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact finding power. [Citations.]” (People v. Rodriguez (86) 42 C3d 730, 766 [230 CR 667].) [See Brief Bank # B-799 for additional briefing on this issue.]
F 17.30a
Jury Not To Consider Gestures By The Judge
*Modify CJ 17.30 to provide as follows [added language is capitalized]:
I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, OR BY ANY GESTURES I MAY HAVE MADE, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness.
If anything I have done or said OR ANY GESTURE I HAVE MADE has seemed to so indicate, you will disregard it and form your own conclusion.
Points & Authorities
CJ 17.30 is intended to inform the jury that it must not be influenced by any statements, actions or gestures by the trial court. (See People v. Franklin (76) 56 CA3d 18, 24 [128 CR 94].) However, CJ 17.30 does not expressly refer to gestures by the trial judge. While the jury may infer that the instruction applies to gestures, “the demeanor of the trial judge, subtle as it may be, can affect the jury significantly.” (Shoretz, “Let The Record Show: Modifying Appellate Review Procedures For Errors of Prejudicial Non-Verbal Communication by Trial Judges” (95) Columbia L. Rev. 1273, 1278. Hence, CJ 17.30 should be modified as set forth above to assure that the jury understands that it must disregard gestures as well as actions and statements by the trial judge.
RESEARCH NOTES: See annotation, Gestures, facial expressions, or other nonverbal communication of trial judge in criminal case as ground for relief, 45 ALR5th 531 and Later Case Service; Annotation, Gestures or facial expressions of trial judge in criminal case, indicating approval or disapproval, belief or disbelief, as ground for relief, 49 ALR3d 1186, supp. sec. 3.
F 17.30b
Comment On The Evidence By The Trial Court
You should keep in mind that my comments are intended to be advisory only and are not binding on you. You are the exclusive judges of the questions of fact submitted to you and of the credibility of the witnesses. You should disregard any or all of the comments, if they do not agree with your views of the evidence and the credibility of the witnesses.
Points and Authorities
Article VI § 10 of the California Constitution permits the court to “make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” Judicial comment on the evidence “must be accurate, temperate, non-argumentative, and scrupulously fair. The trial court may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact finding power. [Citations].” (People v. Rodriguez (86) 42 C3d 730, 766 [230 CR 667].) In People v. Proctor (92) 4 C4th 499, 540-43 [15 CR2d 340], the court approved of judicial comment upon the defendant’s testimony while noting that both prior to and after its comments, the court admonished the jury that it was free to disregard those comments. The above instruction is adapted from the one which was given in Proctor. (Proctor 4 C4th at 540.)
