Sample of one of my appellate brief's, part four.
When it came time for the appellant to testify, the Court began questioning the appellant but did not advise the appellant of his right to remain silent. The Court merely directed the defendant to take the witness stand, swore in the defendant and began by asking: “Can you tell me what happened on the evening of June 26th, 2006, when you got stopped?” (p. 9, lines 17-19) The appellant’s answer to the Court’s question was damaging to the appellant’s case. Later, the Court asks the appellant a highly incriminating question: “Okay, so you were traveling and you didn’t realize you were traveling at such a high speed. Did you know you were speeding?” (p.10 line 25 through p.11 lines 2-4)
ARGUMENT
Although a Judge is certainly permitted to ask questions of the witness, the Court in the case at bar abused her authority. In fact, the Court acted in a prosecutorial fashion in that Court conducted the entire direct questioning of the People’s witness, eliciting all the necessary testimony to establish the elements of the accused offense. It appears that the People’s case was entirely the product of the Court’s direct examination of the People’s witness.
The Court held in People v. Arnold (98 N.Y.2d 63 (2002) 745 N.Y.S.2d 782, 772 N.E.2d 1140), that while "neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process," the court's discretion is not unfettered (People v. Jamison, 47 N.Y.2d 882 (1979) at 883). The overarching principle restraining the court's discretion is that it is the function of the judge to protect the record at trial, not to make it. (People v. Yut Wai Tom, 53 N.Y.2d 44, 58 [1981]). Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial (see id. at 58; see also People v. DeJesus, 42 N.Y.2d 519 [1977]; People v. Mees 47 N.Y.2d 997 [1979]). A court may not, however, assume the advocacy role traditionally reserved for counsel (see e.g. Matter of Carroll v. Gammerman,193 A.D.2d 202 [1993]).
In the case at bar, the Court crossed the line in effect by taking on the function of the prosecutor and assuming the advocacy role traditionally reserved for counsel, namely the prosecutor. |
