By John DiMotto
While in many proceedings it is important for the judge's demeanor to be clearly visible in order to send a message or emphasize a point, the same cannot be said of the judge's demeanor during a jury trial. At a jury trial, the judge must be totally impartial and not convey to the jury what the judge thinks about the merits of the case or what the outcome of the case should be. It is for the jury to determine the credibility of witnesses, the weight of evidence, and what inferences should be drawn from the evidence by using their common sense and long experiences in life. At a jury trial it is all about how the jury views the case in light of the law. The jury, not the judge, determines what the true facts are from all of the evidence that is presented. The jury, not the judge, determines what is believable. As the jury instructions make perfectly clear, the jury is the judge of the facts and the judge is the judge of the law only. It is critical that a judge not express or convey his/her opinions about the facts or the credibility of the witnesses or their accounts.
It can be difficult for a judge to "play it close to the vest" because in so many proceedings a judge needs to convey his/her feelings, thoughts and beliefs. For example, at sentencing, a judge comments on the nature and gravity of the crime/s. The seriousness can sometimes only be made manifest by controlled emotion. How outrageous behavior is can be emphasized by a judge expressing his/her outrage at the carnage wrought by a defendant's conduct. Comments on the character of the defendant by necessity require a judge to be judgmental about how a criminal lifestyle causes so much harm to the community, the individual victim and the defendant. In reflecting on the effect of the crime on the public requires comment on values.
Although judges in so many cases has to convey what he/she thinks, at a jury trial the opposite is true. When parties ask for a jury trial, they are asking that "the community" in the body of twelve citizens employ their common sense and determine what did or did not happen. What the judge thinks should not come into play. This is not to say that a judge sits back like a proverbial "bump on a log." The judge must control the proceedings, the lawyers -- the environment of the courtroom. However, the judge must not convey what he/she thinks of the evidence, the witnesses or the cause of either side in any manner, shape or form -- by words, glances or body language. Fact finding is the sole province of the jury.
At the end of every jury, I always spend a few minutes with the jury to thank them for their service before I excuse them from the jury room at the end of the case. I oftentimes ask them whether at any time any of them got any impression as to what I thought of the case. I am relieved to hear that they never got anything from me or my demeanor. In fact, some jurors say they were looking for any sign that might help them but never got one. I tell them that is the way it should be because their opinion, not mine, is what counts. Do I have feelings and opinions -- of course -- but I keep them to myself otherwise I would subvert the process.
In the final analysis, the judge must do his/her job and let the jury do its job.