Have you ever presented an expert witness and the direct goes swimmingly? Opposing counsel’s cross does not get much mileage, and you slowly exhale thinking all went well, when the judge utters those few, dangerous words, “Excuse me, I just have a few questions.”
In United States v. Modjewski, the Seventh Circuit explored the appropriate limits of a trial judge engaging in questioning during a sentencing hearing. Modjewski pled guilty to possession of child pornography charges. At sentencing, the defense presented a psychiatric expert to explain some of Modjewski’s psychiatric conditions (PTSD and bi-polar disorder) and how these conditions minimized the risk that Modjewski was a pedophile or would abuse minors in the future.
Judge Virginia Kendall, the district court judge, questioned the expert, and ultimately did not credit the expert’s opinion. Judge Kendall, who is published in the area of child exploitation crimes, made comments on the record that reflected her own opinions and understanding of both the psychology and criminology surrounding child exploitation offenses.
On appeal, Modjewski argued that Judge Kendall should have recused herself because she “stepped into the role of the prosecution.” The Court rejected the argument. Relying on Federal Rule of Evidence 614(b), the Court found that a judge can question a witness, but can exceed that authority “when she ‘abandons her proper role and assumes that of an advocate.’” While such concerns exist in a jury trial setting, judicial questioning “will rarely be prejudicial to the defendant” in a non-jury setting. As to Judge Kendall’s broad knowledge regarding child exploitation offenses, the Court found recusal an inappropriate remedy. In the words of the Seventh Circuit, such a result “would punish the judge for being well-informed.”
Finding no prejudicial error, Modjewski’s sentence was affirmed. Perhaps the greatest lesson here is to know your trier of fact. Expert opinions may wow some triers of fact, but if the trier of fact is well-equipped in the area, the expert used must be similarly well-credentialed.