Yates v. State ( 1979 )

Gunderson, J.,

dissenting:

The prosecutor asked a minor witness, Shaun, the following question:

Q. If one of the men who were in your house that day walked by you on the street, would you be able to identify him?

The Court sustained an objection to this question, on the ground that it called for speculation. Then, the Court initiated the following line of questioning on its own:

THE COURT: Shaun, will you look at the gentleman who is seated at the table right here by Mr. Ecker, the other lawyer, are you looking at him?

THE WITNESS: Yes.

THE COURT: Do you know whether you have ever seen that man before?

Now, I want you to think and I want you to zero in on him and I just want to know if you remember ever seeing him before?

MR. ECKER: Your Honor, I object for the record, I think the question was asked and answered.

THE COURT: You may make your objection on the record. Does he look familiar to you?

THE WITNESS: Yeah.

THE COURT: Now, then, because you can’t remember who was in your house that night, when you look at that man in the courtroom you can’t say whether he was there or whether he was not there; is that right?

THE WITNESS: Yeah.

THE COURT: Because you just don’t remember him; is that right?

THE WITNESS: Yes.

THE COURT: You are sure of that, Shaun?

THE WITNESS: Yes.

THE COURT: Okay. That is all I wanted to get out is that the man looks familiar to you; is that correct?

THE WITNESS: Yes.

THE COURT: All right, Mr. Freedman.

MR. FREEDMAN: Yes.

Q. Where does he look familiar from?

A. The face.

Q. I mean, do you have any idea where you might have seen that man before?

A. No.

My colleagues say this line of questioning was not prejudicial, because Shaun testified he could not identify Yates. Still, with all respect to my brethren, I suggest that is just the point. Although Shaun admittedly could not identify Yates, the judge interjected himself into the case to emphasize the prejudicial but legally non-probative point that Yates looked “familiar. ”