The Right and Duty of the Law Officer to Comment on the Evidence

• Author: By Lieutenant Colonel Cecil L. Cutler
• Pages: 04

The author discusses the problem of a law oflicer eom-menting on the evideme. He points out the variety of forms commenting may take: the military praotiee; and several suggestions for the hw oflicer.

I. INTRODUCTION

One may well pity the poi defendant charged with a criminal offense who, after telling his side of the matter to the jury, hears the following imtruction from the judge's charge to the jurors:

And now I am going to teii you what I think of the defendant's testl. many. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hmda during his testimony. It is P rather curious thing, but that is almost always am indication of lying. Why it Lihovld bo 80 we don't know, but that i~ the fact. I think thst every single w r d that mansaid, exeept when he agreed with the Government's testimony, was a lie:

As might be expected, this instruction given by a trial judge was found on appeal to be highly prejudicial despite 8 further instruetion by the judge that his comment was only opinion and not binding on the court.

It is not likely that .a law officer presiding at a general court-martid would make such a comment a part of his instructions tothe court. Being constantly aware that any comment upon the evidence made by them is subjeet to the closet scrutiny on appellate levels, it is perhaps natural that, out of a superabundance of caution, law officers hesitate to make a practice of commenting upon theevidence.

Increasingly, however. the Court of Militav Appeals has insisted that law officers tailor their instructions tn fit the issues

'The views expremed are tho- of the a ~ t h ~ r and do not neees8arily

reorelent the views of The Jvdpe Advoeste Generai'a Sehml OT any ather

of their cases far "instructions correct in the abstract may be inadequate or misleading in the context of the specific issues of the ease." * Instrucbons should, therefore, "be swifically and precisely related to the issues marked aut by the allegatiom and the evidence." a Defining further what it mean8 by the tailoring of instructions, the Court, in United States 8. Smith,' stated the following:

What 18 eonrempisted is the affimatiw aubmiiaien of the respective themes, both of the Government and of the accused on trial, ta the ~riers of fael, with lucid guideposts, to the and that they may knowledge. ably apply the iaw to the facts 86 they find them.'

In order to present meaningful and properly tailored instruc-tiom it is usually nffesaty to advert to the "facts" of a cue to a greater or laser degree, perhaps even to the extent of an expression of opinion on the weight and sufficiency of some of the evidence or testimony. If the law officer merely sums up or summarizes the evidence fairly for both sides such would not constitute per se commenting upan the evidence.'

11. COMMENTING ON THE EVIDEliCE

What, then, IS commenting u p n the evidence? Black's Law

The expression of the judgment passed upon certain alleged facts by B person rho has applied his mind to them, and who while so comment mg aissumeb that such aiiegatians of fact are true. The -mition ai B fact IS not "Commenf.".

From various case we can cull exmples. It is comment if the judge calls the attention of the jury to parts of testimony he deems important and exprwes his opinion upn the facts.8 It occurs when a judge instructs BS to the tendency, force, and comparative weight of conflicting testimony or comment4 as to the weight to be given the testimony of particular winesses, impeaching testimony, admissions, dying declarations, or other

'United States Y. Nickosan, 16 U.S.C.M.A. 340. 543, 35 C.M.R. 312, 316

'United States Y. Nickoson, 8 ~ p a note 2, quoting from United States Y.

Dietionaq, defines comment as

(1965).

163 U.S. 614 (1BSO; Bannrster Y. Lute 21 Hawaii 222, 19lSA Am. & Eng. Ann. Cas. 1136 (1912).

1 BLACK, LAW DICTIONARY 336 (4th 4. 1S51),'Sea United Stater Y. Yurdoek, 290 U.S. 389 (193s).

AGO 6111.

COMMENTING ON EVIDENCE

testimony: when he expressas his opinion on the veracity of a witness;'O or the failure of a party to produce a witness or evidence." It is comment if a jury is told that certain evidence is not conclusive '2 or that the evidence, or any part of it, if believed by the jury, is deeisive of the isasue.la It happens when a judge expresses an opinion uwn the reasonable inferences which can be drawn from the evidence.Id It is comment for B judge orlaw officer to express his opinion of guilt of the accused.l6

A judge or haw officer can comment upon the evidence by what he does not say, BS, for example, setting forth in a summarimtian of evidence only one side of the case but not the other." An inadvertent "Slip of the tongue" can be wmment.17 So ais0 it ia comment when any language or artifice is employed by the judge from which the jury may know that he gives more credence to one part of hhe testimony than to anobher."

Comidering that commenting u p n the evidence is the expression of an opinion from the bench it could be said, albeit loosely, that any ruling admitting evidence in effect admits it has some probative value. So also an interlocutory ruling by a law officer denying or granting...