It depends

it almost always does – if the error was harmless.

federal evidence review blog brings a reminder as follows:

What are the limits in which a trial court may examine witnesses under FRE 614? The Third Circuit recently assessed the boundaries of a judge’s questioning of witnesses in a case involving a defendant who represented himself at trial. Although the judge’s motivations were understandable, none-the-less the judge erred because he “abandon[ed] his proper role and assume[d] that of advocate,” in United States v. Ottaviano, __ F.3d __ (3d Cir. Dec. 24, 2013) (Nos. 11–4553, 13–1119)

The military rule is more detailed than the federal rule. On a few occasions I have objected to a military judge’s questions of witnesses. I stress few. Under MRE 614, a military judge is allowed to ask their own questions of witnesses, few do in a members case, more will do so in a judge alone case. The few times I have objected I felt the military judge was in fact departing the judicial role for that of a thumber on the scales on behalf of the Government. The military Rule states:

(b) Examining. The military judge or members may examine a witness regardless of who calls the witness. Members must submit their questions to the military judge in writing. Following the opportunity for review by both parties, the military judge must rule on the propriety of the questions, and ask the questions in an acceptable form on behalf of the members. When the military judge or the members call a witness who has not previously testified, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party.

There is a delicate balance between asking questions that clarify testimony and those that develop testimony on behalf of a party – and more often the big G.

We review a military judge’s refusal to recuse himself for an abuse of discretion. United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001);United States v. Wright, 52 M.J. 136, 141 (C.A.A.F. 1999). “An accused has a constitutional right to an impartial judge.” Wright, 52 M.J. at 140 (citingWard v. City of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927)). There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007); see also United States v. Jarvis, 22 C.M.A. 260, 46 C.M.R. 260, 262 (C.M.A. 1973); United States v. Kratzenberg, 20 M.J. 670, 672 (A.F.C.M.R. 1985).

United States v. Brewster, ACM 37247, 2009 CCA LEXIS 138 (A.F. Ct. Crim. App. May 7, 2009)(unpub.).

We assess whether, “‘taken as a whole in the context of this trial,’ a court-martial’s ‘legality, fairness, and impartiality’ were put into doubt by the military judge’s questions.” United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995) (quoting United States v. Reynolds, 24 M.J. 261, 265 (C.M.A. 1987)). This test is applied from the viewpoint of the reasonable person. Ramos, 42 M.J. at 396 (citing S. Childress & M. Davis, 2 Federal Standards of Review § 12.05 at 12-38 (2d ed. 1992)). Article 46, UCMJ, 10 U.S.C. § 846, and Mil. R. Evid. 614, “provide wide latitude to a military judge to ask questions of witnesses called by the parties.” United States v. Acosta, 49 M.J. 14, 17 (C.A.A.F. 1998). It is clear to us from the record that the military judge did not abandon his impartial role, either by the nature of the questions he asked or the manner in which he asked them. This case involved a significant number of motions and evidentiary issues. The 7-volume record of trial included a 782-page trial transcript. The military judge did a meticulous job of resolving the issues raised by both sides, and the record shows he acted fairly and impartially throughout the proceedings. We are convinced that a reasonable person would not question the legality, fairness, and impartiality of the appellant’s trial. See Ramos, 42 M.J. at 396.

United States v. Vandenhecke, ACM 35850, 2006 CCA LEXIS 81 (A.F. Ct. Crim. App. March 27, 2006)(unpub.); see also, United States v. Sanford, NMCCA 200500993, 2006 CCA LEXIS 303 (N-M Ct. Crim. App. November 6, 2006)(unpub.); United States v. Lyon, ARMY 20090792, 2012 CCA LEXIS 79 (A. Ct. Crim. App. February 28, 2012)(unpub.)(vacated and remanded on a Fosler issue 2012 CAAF LEXIS 39 (C.A.A.F. Jan. 11, 2012) .

For those requiring something published, see United States v. Dock, 40 M.J. 112 (C.M.A. 1994). And in United States v. Martinsmith, 41 M.J. 343 (C.A.A.F. 1995), the court discusses members access to witnesses.