By John DiMotto
My friend, Court of Appeals Judge Dan Anderson, did a facebook post about an article on boston.com about how the Massachusetts Supreme Court is reviewing a conviction in which a trial judge injected himself in a trial with the jury about how CSI is not reality. While it may not be reality, the issue revolves around the judge telling the jury this fact. The Chief Justice of the MA Supreme Court expressed sentiments that everyone knows this and a judge should not say so.
This issue highlights the "tightrope" that a trial judge must traverse during a jury trial. Judges must be careful about comments they make during a jury trial because jurors look to the judge "for counsel." When a judge speaks, the jurors listen and accept what the judge says as fact. The judge should be above the fray and be independent and not express any opinions about the case or the strength or weakness of the evidence. We do not wear robes just to lend dignity to the proceedings. As my wife, Judge Jean DiMotto, has said, when a judge puts on his/her robe it covers up our personality, our likes and dislikes, our passions and our idiosyncrasies and we make rulings based on the facts and the law - not what we would like to see.
If there is an issue regarding scientific testing, etc, the CSI issue may be one that should be addressed by the attorneys during voir dire.