No problem in judge's questioning of witness about Sharia law (at least when witness had brought up the subject)

|The Volokh Conspiracy |

Defendant was convicted of assault with intent to do great bodily harm, based on his attack on his landlord following an argument; the Michigan Court of Appeals affirmed the conviction last week (People v. Al-Sayiry), and in the process dealt with the following issue (some paragraph breaks added):

[Defendant] argues that the trial court pierced the veil of judicial impartiality by questioning defendant's father, a defense witness, in a manner suggesting that it was partial to the prosecution…. Defendant did not object to the trial court's questioning of defendant's father. Accordingly, this issue is unpreserved and our review is for plain error affecting defendant's substantial rights.

During questioning by defense counsel, defendant's father testified that defendant was raised according to Sharia law. Defendant's father explained that defendant married his current wife before defendant's son was born because, under Sharia law, defendant was not allowed to have a child without being married.

The trial court thereafter asked additional questions about Sharia law. The court asked whether Sharia law permits a person to have tattoos, to carry a gun, or to use drugs or alcohol. Defendant's father testified (1) that tattoos are disliked, but not forbidden; (2) that guns are not normally permitted, but are allowed if there is danger; and (3) that drugs or alcohol are never allowed. Defendant argues that the court's questioning went beyond merely attempting to clarify testimony and instead pierced the veil of judicial impartiality.

MRE 614(b) expressly permits a court to "interrogate witnesses, whether called by itself or a party." But a court must be careful not to pierce the veil of judicial impartiality. "A judge's conduct pierces [the veil of judicial impartiality] and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party." This is a "fact-specific analysis[,]" and the pivotal inquiry is whether "the judge's conduct was sufficiently severe and clear so as to create the appearance of bias against the aggrieved party."

In evaluating the totality of the circumstances, the reviewing court should inquire into a variety of factors, including the nature of the judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge's conduct was directed at one side more than the other, and the presence of any curative instructions.

We conclude that the trial court's questioning of defendant's father did not arise to a level of plain error affecting defendant's substantial rights….

[T]he central object of judicial questioning should be to clarify. Therefore, it is appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit additional relevant information. Judicial questioning, nevertheless, has boundaries. The Michigan Code of Judicial Conduct states:

A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but the judge should bear in mind that undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge's part toward witnesses … may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto … In addressing counsel, litigants, or witnesses, the judge should avoid a controversial manner or tone. A judge should avoid interruptions of counsel in their arguments except to clarify their positions, and should not be tempted to the unnecessary display of learning or a premature judgment.

It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or unintentionally. It is essential that the judge "not permit his own views on disputed issues of fact to become apparent to the jury."

The questions in this case appear to have been intended to clarify the testimony of defendant's father regarding how religion may have impacted defendant's upbringing and practices. By bringing up Sharia law, the defense left the jury with the impression that defendant endeavored to conduct himself in accordance with the tenants of Sharia law. It was not inappropriate for the trial court to seek clarification regarding how other conduct in which defendant was known to have engaged was viewed under Sharia law.

To the extent that the court's questioning and tone could be viewed as inappropriately argumentative or hostile, the totality of the circumstances do not reveal that the court improperly pierced the veil of judicial impartiality.

First, the objectionable questioning was brief and isolated. It involved three questions to a single witness over the course of a three-day trial. There was no pattern of conduct in which the court signaled any partiality in favor of the prosecution or against defendant.

Second, the subject of Sharia Law simply was not a significant factor in the case. To the extent that the questions could be viewed as attacking the credibility of defendant's father, he really had little to offer in the way of a defense. The court's questions did not impact any information critical to the issues before the jury.

Third, in its final instructions, the trial court explained to the jury that when it made a comment during trial, it was "not trying to influence your vote or express a personal opinion about the case," and that "[i]f you believe that I have an opinion about how you should decide this case, you must pay no attention to that opinion." These instructions reinforced to the jury that any perceived partiality reflected in the court's questioning of defendant's father was not intentional and should be disregarded. Considering the totality of the circumstances, it is not reasonably likely that the court's brief questioning of defendant's father improperly influenced the jury by creating the appearance of advocacy or partiality against defendant.