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Lagola v. Thomas1/31/2005
The trial judge's questioning of defense witnesses in this case started with the defendant and continued throughout the defendant's case. While Lagola was not an expert witness, she was a key witness who was a party to the accident and the litigation. The trial judge's questions concerned the timing of when Lagola observed Thomas' pick-up truck, her distance at that point from Thomas' pick-up truck, and when she started braking. Lagola argues that the trial judge's questions focused on crucial areas of her testimony about defenses of unavoidable accident and sudden emergency, and that those precise areas had already been the subject of direct and cross-examination. Lagola contends that while the questions were not abusive per se, they nonetheless, in context, created doubt as to her earlier testimony on distance, visibility and reaction.
Dr. Thibault, who testified next for the defense, was also subjected to the trial judge's examination. The trial judge questioned Dr. Thibault about whether the speed of Lagola's vehicle could have been determined given the available evidence. After Dr. Thibault acknowledged that speed was not part of his analysis, the trial judge continued to ask about an "outside estimate" of Lagola's speed.
The trial judge also questioned Doctor Brooks, Lagola's medical expert. At trial, Thomas was claiming a neck injury with nerve impingement resulting in pain flowing from his neck down his left arm. Doctor Brooks was called as an expert to dispute the claim that Thomas' pain resulted from the accident. Doctor Brooks testified that Thomas' pain, surgery and discontinuance from work resulted from degenerative conditions to his spine which existed prior to the accident. Doctor Brooks formed his opinion after reviewing Thomas' x-rays, CT scans and an MRI. The trial judge's questions of this witness focused on whether a traumatic event might have exacerbated Thomas' pre-existing conditions. Lagola contends that the judge's repeated questions of her defense witnesses called their credibility into issue.
Initially, we note that Lagola's counsel did not express any concern about the trial judge's questioning of three defense witnesses until after Thomas' motion for a directed verdict was denied. Absent plain error, we will not review claims that are not fairly presented to the trial court. Our review "entails not only the substance of the ruling on admissibility, but the manner in which it was formulated."
The trial judge "should act as a gatekeeper to all expert testimony and must decide if the expert's testimony 'has a reliable basis in knowledge and experience of [the relevant] discipline.'" This role of the trial judge "as gatekeeper also carries with it a heightened requirement of impartiality whenever the trial judge engages in direct questioning of an expert witness[,]" particularly when it is done in the presence of the jury "who may later be called upon to evaluate the credibility of the witness."
The trial judge's role as a gatekeeper should be performed outside the presence of the jury either through motions in limine prior to trial or during preliminary voir dire by counsel of a proposed expert.
A trial court is permitted to interrogate witnesses "whether called by itself or a party." However, a trial judge is required to exercise self-restraint and preserve an atmosphere of impartiality when questioning witnesses. This requirement "arises from the judge's absolute duty of neutrality." "Departure from that rule may be grounds for reversal on the basis of plain error."
Although a trial judge may instruct the jury that he or she is impartial, the judge's conduct may suggest the contrary because the t
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