Judge’s description not impermissible judicial testimony

August 4, 2015

A Marion County judge who described the testimony to jurors as “heartfelt” did not overstep the prohibition against the judiciary acting as a witness.

Stephen Ferguson appealed his conviction of two counts of Class A felony child molesting, in part, on the grounds that Marion Superior Judge Lisa Borges violated Indiana Rule of Evidence 605 which bars judges from testifying as a witness at a trial. Specifically, Ferguson maintained Borges erred when she told the jury that the opinions of other people, “though heartfelt,” should not be considered.

The Indiana Court of Appeals noted judges can become witnesses in “less overt ways” than stepping down from the bench and actually taking the witness stand. In such situations, errors are found when the judge’s comments add to the evidence and are not merely summarizations of, or fair comment on, the evidence already presented at trial.

Finding no Indiana cases addressing the issue of impermissible judicial testimony, the appellate panel turned federal precedent, pulling cases from as far back as 1933. Based on its research, the Court of Appeals ruled the trial judge in Stephen Ferguson v. State of Indiana, 49A04-1412-CR-557, did not commit a reversible error.

Writing the court’s opinion, Senior Judge John Sharpnack explained, “We find here that the trial court’s use of ‘though heartfelt’ was not testimony and was not improper comment on an issue to be decided by the jury. The trial court instructed the jury not to consider the opinions of others as to the credibility of witnesses. ‘Though heartfelt’ emphasized the instruction by saying it was not relevant how ‘heartfelt’ the opinions may have been.”



Recent Articles by Marilyn Odendahl