GROUNDS FOR RELIEF
NO EVIDENCE DOCTRINE: THE TRIAL JUDGE MADE AN IMPROPER COMMENT ON THE EVIDENCE BY INSTRUCTING THE JURY THAT AS MATTER OF LAW HE HAD MADE AND INITIAL DETERMINATION THAT ALL EVIDENCE INTRODUCED AT TRIAL HAD MET HIS THRESHOLD STANDARD OF RELIABILITY THEREBY CONTAMINATING ALL EVIDENTIARY ADMISSIONS WITH A PRESUMPTION OF A DEGREE OF RELIABILITY FUNCTIONALLY TRANSFERRING THE BURDEN OF DISPROOF THEREOF TO THE DEFENSE AND FUNCTIONALLY TRANSFERRING THE BURDEN OF PRODUCTION TO THE DEFENSE AS TO RELIABILITY WHICH IS SUPPOSED TO BE THE EXCLUSIVE PROVINCE OF THE JURY WHICH IS STRUCTURAL DEFECT REQUIRING REVERSAL.
In this case the trial judge instructed the jury that he had already concluded that all evidence that would be introduced at trial carried with it a degree of reliability, a term that is functionally indistinguishable from credibility as applied to this case, thereby making an improper comment on the evidence, constructively transferring the burden of persuasion and production over to the defense. cf., Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1976); which is exceptionally important when as here, petitioner is challenging his conviction based on such trial judge’s self induced insufficiency of untainted evidence introduced at trial following the trial judge’s improper comment on the evidence, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“The relevant question is whether, after viewing evidence in light most favorable to prosecution, any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt.. Constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless; even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar”).
In this case, because the trial court made a blanket improper comment on the reliability of all evidence to be introduced at trial, the “no evidence doctrine” application is inherent because all evidence is tainted, cf., Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) (“Whether convictions were unconstitutional under due process clause of Fourteen Amendment depended upon whether convictions rested upon any evidence at all rather than upon sufficiency of evidence”); inter alia, because only non-tainted evidence can be considered for a sufficiency of analysis under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) implicating structural defect under Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also, State v. Jeannotte, 133 Wn.2d 847, 947 P.2d 1192 (1997) (“The jury is the sole and exclusive judge of the evidence, the weight given thereto, and the credibility of the witnesses. A trial court cannot vacate a conviction based on its disagreement with the jury’s determination on witness credibility”).
JUDGE WARME CREATED A STRUCTURAL ERROR BY INSTRUCTING THE JURY THAT ALL EVIDENCE THAT WILL BE ADMITTED AT TRIAL HAS ALREADY MET HIS MINIMUM STANDARD OF CREDIBILITY
(Page 6) The first in this, it is the jury’s responsibility to decide what has been proven or not proven, based upon what they hear from the witness stand. That’s not my job. I do not judge the evidence. In fact, the Washington State Constitution prohibits trial judges from commenting on the evidence…(page 8) In two weeks, it is impossible for the lawyers not to make objections…Over a period of hundreds of years, we have evolved certain rules of evidence that are intended to ensure minimum standards of reliability. And, if evidence that is offered doesn’t reach minimum standards of reliability. Then we don’t allow it…(page 9) I make the determination of admissibility…It doesn’t mean that the jury has to find that it is true. It is simply that this meets minimum standards of reliability, the jury is entitled to consider it and what they do with it is up to them entirely. If I say it doesn’t meet minimum standards of reliability, then it is not admissible and the jury doesn’t got to hear it…One of the rules that we have about minimum standards of reliability is, we don’t allow secondhand information. We don’t allow a witness to take the stand and say, “No, Your Honor, I wasn’t there. I didn’t see it but I talked to somebody else and they were there and they saw it and they told me (page 10) what happened. So I will tell you what they told me.” That’s secondhand information. We don’t allow that. We call that hearsay. We want the person, who was actually there, who saw what happened, to come to court to testify to tell the jury what they saw. Not what someone else heard that they saw. Now, that’s a pretty simple rule but there are exceptions to that rule. There are some things that the law says sound like hearsay but they are not. There are some things that the law says are hearsay but we allow them in anyway because there are other reasons why they might be reliable, It is not a concern for members of the jury. The lawyers and I, during the course of this trial, will discuss, usually in the hallway, issues involving evidence. The lawyers and I spent many painful hours in law school learning the rules. We are still learning them and we still have discussions about the. You do not have to worry about objections. What ultimately will happen is, I will make the determination. It comes in and I will say, “the objection is overruled”, meaning that the witness can answer and the jury can do with the evidence what they wish. Of, I will say, “The objection is sustained” that does not meet a minimum rule.
Page (160) Mr. Wardle: When you were in that classroom taking the criminal justice, was it part of your job, as a witness, o watch people test the evidence and see how strong the evidence was? Juror: Uh-hu. Mr. Wardle: We use the word credible. The word credible means just how good that evidence is. How much do you believe in that evidence.
JUDICIAL COMMENT ON THE EVIDENCE
State v. Sivins, 138 Wn.App. 52, 155 P.3d 982 (2007):
A statement by a trial judge constitutes a comment on the evidence in violation of Const. Art. IV, § 16 if the jury could infer from the statement the judge’s attitude towards the merits of the case of the judge’s evaluation of a disputed issue.
Const. Art, IV, § 16 which forbids a judge from commenting on the evidence in a jury trial, is intended to prevent the jury from being unduly influenced by the trial judge’s opinion regarding the credibility, weight, or sufficiency of the evidence.
Once it is established that a trial judge’s remarks constitute an improper comment on the evidence, prejudice is presumed. The burden is on the State to show that the defendant was not prejudiced by the comment, unless the record affirmatively shows that no prejudice could have occurred.
State v. Brush, 183 Wn.2d 550, 353 P.3d 213 ( 2015):
A jury instruction that inaccurately states the law and that, in doing so, essentially resolves a contested factual issue, constitutes an impermissible comment on the evidence in violation of Const. Art. IV, § 16.
State v. Sinrud, 2017 Wash.App. Lexis 2279 (2017):
The Washington State Constitution does not allow judges to charge juries with respect to matters of fact, no comment thereon. Wash. Const. Art. IV, § 16. Instead, they shall declare the law. A jury instruction that does no more than accurately state the law pertaining to an issue does not constitute an impermissible comment on the evidence by a trial judge. But, when the jury instruction does not accurately state the law, and instead essentially resolves a contested factual issue, it constitutes and improper comment of the evidence. An instruction concerning the corroboration needed to support an inference of intent to deliver constituted prejudicial judicial comment on the evidence.
In a prosecution for unlawful possession of a controlled substance with intent to deliver, the trial court improperly comments on the evidence in violation of Const. Art. IV, 16 by instructing the jury that “mere possession of a controlled substance does not allow you to infer an intent to deliver a controlled substance. The law requires substantial corroborating evidence of intent to deliver in addition to the mere fact of possession. The improperly communicated to the jury that evidence of a single corroborating factor.” The language of the instruction improperly communicates to the jury that evidence of a single corroborating factor necessarily provides sufficient corroborating evidence to support an inference of intent to deliver. While one additional factor can amount to substantial corroborating evidence, it does not necessarily establish that.