An opinion that came out yesterday from the Court of Appeals (Toomey, J.) emphasizes the importance of trial judges remaining expressionless and quiet in the face of testimony they may disbelieve. SeeRule 19(f), U.R.Crim.P and Rule 51(g), U.R.Civ.P. (“The court shall not comment on the evidence in the case, and if the court states any of the evidence, it must instruct the jurors that they are the exclusive judges of all questions of fact.” Also, U.R.E. 605 (“The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.”)

In State v. Maama2015 UT App 235, a trial for assault and riot, the trial judge apparently expressed incredulity with certain testimony by rolling her eyes (see n. 6) and by interrupting defense counsel’s cross examination of a witness to state that she recalled the evidence differently than the attorney (Par. 17- 20).

The Court of Appeals agreed that this behavior by the judge was inappropriate. However, given the totality of the evidence, it likely did not make a difference and the conviction was affirmed.

The lesson here- forget Judge Judy. Our trial judges are supposed to be absolutely neutral in appearance and word. Any hint that the judge favors one side over the other, or believes or disbelieves certain evidence, is a no-no.

As an aside, in other Common Law countries, it’s interesting that judges are either permitted or required to sum up the evidence for the jury– something that is generally forbidden in the U.S. For a fascinating discussion of the pros and cons of this, see, Paul Marcus, “Judges Talking to Jurors in Criminal Cases- Why U.S. Judges Do It So Differently From Just About Everyone Else,” 2013 Wm. & Mary Law School Scholarship Repository.