For more than 150 years, the law has prohibited trial judges from commenting on the evidence in criminal jury trials. A state statute, court rule, and case law all bar judges from inserting themselves into a case in a way that could tilt the scales of justice toward one party or another. However, if the Missouri Supreme Court allows a proposed eyewitness jury instruction to take effect Jan. 1, 2016, all that will change.
The Supreme Court’s Committee on Procedure in Criminal Cases has proposed a sweeping change to Missouri law. Judges from the 22nd Circuit have objected to this surprising overreach, as has the Missouri Association of Prosecuting Attorneys. But if the Supreme Court does not take action, more than a century’s worth of law will be dusted aside with very little fanfare and even less discussion.
The new instruction reads more like a closing argument, sowing seeds of doubt before the attorneys even have a chance to argue the case. Instead of merely instructing the jury on the law, it requires trial judges to wade into the social science debate on whether eyewitnesses should be trusted. It even suggests that witnesses are not reliable when it comes to identifying a criminal of another race.
Chief Justice John Roberts famously said it was a judge’s job to “call balls and strikes and not to pitch or bat.” The new instruction moves the judge out from behind home plate and puts the judge on the criminal defense lawyer’s team. In the final inning of a trial — when the court instructs the jury — the judge will become a second defense lawyer while still wearing a black robe.
Since at least 1855 in State v. Upton, Missouri judges have not been allowed comment on the evidence:
“Courts always err, when they attempt to lay down rules by which a jury should be governed in estimating the weight to be given to the evidence of witnesses examined before them. That is a matter to be determined exclusively by themselves. They hear the witness and see his deportment, and from these circumstances, they determine, for themselves and by themselves, the confidence they will repose in his testimony. Where courts are permitted to sum up or comment upon the evidence, it is usual to express an opinion as to the weight to be given to the testimony of a witness; but as that is not allowed here, in criminal proceedings, the court should not attempt, by an instruction, to determine for a jury the weight to be given to the evidence. They should only direct the jury that, viewing all the testimony before them, and the conduct of the witnesses, they are the sole judges of the credibility of all those who testify before them.”
This rule of law has been reaffirmed by the courts over the years, such as in 1970 in State v. Everett: “The general rule is that an instruction which unduly directs attention to the credibility of a witness or classes of witnesses or the manner in which the testimony should be received is erroneous. Instructions on credibility of witnesses should be couched in general terms applying alike to all witnesses.”
The Missouri legislature has also forbidden judges from commenting on the evidence in Section 546.380, RSMo, and existing court rules make the same point.
Contrary to existing law, the proposed eyewitness instruction argues supposed facts not in evidence — the very kind of evidence the Supreme Court has affirmed trial courts in excluding such as in State v. Lawhorn in 1988.
Of course, trial judges already instruct juries about evaluating witnesses, as in MAI-CR 302.01:
“In determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness’ manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, or prejudice the witness may have; the reasonableness of the witness’ testimony considered in the light of all of the evidence in the case; and any other matter that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness.”
If the Missouri Supreme Court believes it must do more to instruct juries about eyewitnesses, it should limit its instructions to the factors handed down by the U.S. Supreme Court in Neil v. Biggers in 1972 for the evaluation the reliability of eye witness in-court identifications: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Unfortunately, the myriad factors included in the new eyewitness instruction go well beyond this mandate.
Judges should never even hint that a particular class of witnesses is suspect. Unfortunately, the proposed eyewitness instruction would substitute the judge’s role as neutral magistrate for that of advocate by requiring judges to make arguments better left to criminal defense lawyers’ closing arguments and social science professors’ debates. The Missouri Supreme Court should avoid placing a thumb on the scales of justice and steer clear of the ongoing debate over the reliability of eyewitnesses.
Pulaski County Prosecuting Attorney Kevin Hillman is the president of the Missouri Association of Prosecuting Attorneys.