Auger v. Auger, 86-334

• Decision Date: 29 April 1988
• Docket Number: No. 86-334,86-334
• Citation: 546 A.2d 1373,149 Vt. 559
• Parties: Dawn M. AUGER v. Michael M. AUGER.
• Court: Vermont Supreme Court

Page 1373

546 A.2d 1373

149 Vt. 559

Dawn M. AUGER v. Michael M. AUGER.

No. 86-334.

Supreme Court of Vermont.

April 29, 1988.

Gensburg & Axelrod, St. Johnsbury, for plaintiff-appellee.

M. Jerome Diamond and Suzanne R. Brown, Law Clerk, on the Brief, of Diamond & Associates, P.C., Montpelier, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

MAHADY, Justice.

Defendant-husband brought this appeal from a final order of divorce. At trial the principal issue involved the custody of the minor child of the parties. The issue on appeal is whether the conduct of the final hearing deprived the defendant of a fair trial. We conclude that it did and reverse.

Prior to taking evidence, the trial court advised counsel that it wished to depart from the customary order of proof. As a result, the first witness was plaintiff followed by the child's day care teacher (who testified favorably for the defendant) and defendant.

By the noon recess, the first two witnesses had testified, and defendant was in the process of testifying. During the recess, the trial judge advised both counsel in chambers that he was inclined to plaintiff's position in the litigation and that plaintiff might not need to present further testimony.

During the testimony of the day care teacher, the court appears to have cut off her direct examination by defendant's counsel prior to completion of that examination, commenting, "All right; why don't we let [plaintiff's counsel] question the witness?" The direct examination had not been lengthy nor had it been cumulative.

Throughout the hearing, the court questioned the witnesses extensively. Such interrogations were interspersed throughout the direct and cross-examination of counsel. In all, the court asked approximately 156 questions of the various witnesses; interrogation by the court appears on 63 pages of the total 143 pages of the transcript.

Following the noon recess at which the court expressed its "inclination," the defendant presented three additional witnesses and recalled the day care teacher. The court questioned these witnesses extensively. Most of the interrogation was in the form of cross-examination with a liberal use of leading questions.

At the close of the evidence, the court took a recess for a total of twenty-two minutes. It thereupon announced its decision from the bench awarding custody of the minor child to plaintiff.

Defendant filed a motion for a new trial, which the court denied in a written opinion. In that opinion the court noted:

The most frequently discussed reason for judicial reticence regarding the questioning of witnesses is the appearance of neutrality. But what is the importance of that consideration outside the scope of jury trials? While one may conceive of a class of cases in which the appearance of neutrality is more important than the adduction of relevant testimony, surely bench trials of custody cases do not fall into such a class.

It is, of course, true that a trial judge may "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence." V.R.E. 611(a). The court may also "interrogate witnesses, whether called by itself or by a party." V.R.E. 614(b). This has long been our accepted practice. See, e.g., State v. Noakes, 70 Vt. 247, 257, 40 A. 249, 252 (1897).

It is also true, however, that "every person is entitled by law not only to a fair trial of his case, but to one free as may be from suspicion of partiality." Ricci v. Bove's Administrator, 116 Vt. 406, 411, 78 A.2d 13, 18 (1951). This basic principle applies to all trials whether they be tried to a jury or to the bench. Indeed, the Advisory Committee note to the identical Federal Rule, F.R.E. 614(b), warns that the trial judge's "authority is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse."

Consistent with this principle, a trial judge may control the presentation of evidence and may interrogate witnesses, but "he nonetheless must remain the judge, impartial, judicious, and, above all, responsible for a courtroom atmosphere" which provides a trial free as may be from suspicion of partiality. United States v. Brandt, 196 F.2d 653, 655 (2d Cir.1952).

"Under the Anglo-American adversary trial system, the parties and their counsel have the primary responsibility for finding, selecting, and presenting the evidence." McCormick on Evidence § 8, at 14-15 (3d ed. 1984). While judicial intervention is often appropriate, it must always be kept in mind that "the judge who actively interrogates a witness is interfering with the opportunity of the adversaries to make their cases as strong as possible and with their opportunity to give the trier of fact, whether judge or jury, the chance to see the full strength of each competing position." Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64 Va.L.Rev. 1, 55 (1978).

The observation of former Chief Justice Wilson of the Supreme Court of Minnesota in a divorce case applies to this case: "Many of the things to which [the trial judge] directed questions would have been developed by counsel had the court's patience permitted." Taylor v. Taylor, 177 Minn. 428, 432, 225 N.W. 287, 289 (1929).

It is the better practice to allow counsel the opportunity to develop the facts in the first instance. Counsel is in a better position to do so. As Judge Frankel has noted:

The judge views the case from a peak of Olympian ignorance. His intrusions will in too many cases result from partial or skewed insights. He may expose the secrets one side chooses to keep while never becoming aware of the other's. He runs a good chance of pursuing inspirations that better informed counsel have considered, explored, and abandoned after fuller study. He risks at a minimum the supplying of more confusion than guidance by his sporadic intrusions.

Frankel, The Search for Truth: An Umpireal View, 123 U.Pa.L.Rev. 1031, 1042 (1975). While judges may be tempted to succumb to the conceit that their participation is essential to the truth-seeking process, "judicial interrogation to search for the whole truth or to complete the evidence presupposes that the judge knows the truth better than the parties or their counsel.... There is something unseemly about a judge ... who seeks to elicit testimony in aid of those answers." Saltzburg, 64 Va.L.Rev. at 57-58. In short, "a trial judge is poorly positioned and informed to perceive or rescue Truth in the midst of a trial." Uviller, The Advocate, the Truth, and Judicial Hackles: A Reaction to Judge Frankel's Idea, 123 U.Pa.L.Rev. 1067, 1069 (1975). He can too frequently become "a blind and blundering intruder, acting in spasms as sudden flashes of seeming light may lead or mislead him at odd times." Frankel, 123 U.Pa.L.Rev. at 1042.

Therefore, "[e]very advocate should be given elbow room in the performance of his duty to his client." Taylor v. Taylor, 177 Minn. at 432-33, 225 N.W. at 289. "It must be that duties between court and counsel are reciprocal. The trial court owes a duty to counsel, who is an officer of the court. A reasonable amount of questions from the court may be helpful. If this is to be done extensively it should be after counsel has completed his examination." Id. at 434, 225 N.W. at 289-90.

"Active judicial interrogation runs afoul of basic principles underlying the adversary system." Saltzburg, 64 Va.L.Rev. at 55. It can produce an undesirable effect on witnesses who may be much more likely to say what they believe the judge wants to hear than would be the case if counsel asks the questions. This danger is particularly acute when, as here, the judge asks leading questions. Id. at 59. Worse, "[t]his form of judicial activism detracts from the judge's appearance of impartiality and may cause the parties to question the fairness of the trial procedures and the judgment of the court." Id. at 58.

These concerns apply with full force to trials which are tried to a court, sitting without a jury. In child custody proceedings, it clearly is in the best interests of the child that the parents to the degree possible perceive that they were treated fairly by the court; otherwise, protracted litigation and engendered bitterness all too often follow.

Proper judicial interrogation is, of course, essential to the sound administration of justice. As Learned Hand noted: "A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert." United States v. Marzano, 149 F.2d 923, 925 (2d Cir.1945). It is not the practice of judicial interrogation which we condemn; indeed, we reiterate our recent holding, that "[t]he trial court enjoys a great deal of discretion in controlling the interrogation of witnesses and the presentation of evidence...." Coty v. Ramsey Associates, Inc., 149 Vt. 451, ---, 546 A.2d 196, 204 (1988). It is the manner in which such discretion was exercised in this case with which we must find fault.

Active interrogation in and of itself may not require reversal. See, e.g., Taylor v. Taylor, 177 Minn. 428, 225 N.W. 287 (1929). Here, however, the trial court also took over control of the presentation of the evidence. He prematurely terminated defendant's direct examination of a key witness. At an early stage of the trial, he announced his "inclination" favoring the plaintiff. Following that, he actively examined defendant's witnesses thereby creating the appearance of defending his previous "inclination." A decision in favor of plaintiff was announced from the bench shortly after the close of the evidence. The defendant's motion for a new trial was denied with an...