1. The right of a trial judge in a federal court to comment upon
the evidence and express his opinion of it, while making clear to
the jury that they are not bound by his opinion and that all
matters of fact are submitted to their determination, is an
essential common law prerogative maintained by the Constitution. P.
289 U. S.
469.
2. This privilege, however, does not permit the judge to distort
or add to the evidence, and, because of his great influence on the
jury, he must use great care to be fair and not mislead, and must
studiously avoid deductions and theories not warranted by evidence.
P.
289 U.S. 470.
3. It is important that hostile comment of the judge in a
criminal case should not render vain the privilege of the accused
to testify in his own behalf. P.
289 U.S. 470.
4. The court charged the jury:
"And now I am going to tell you what I think of the defendant's
testimony. You may have noticed, Mr. Foreman and gentlemen, that he
wiped his hands during his testimony. It is a rather curious thing,
but that is almost always an indication of lying. Why it should be
so, we don't know, but that is the fact. I think that every single
word that man said, except when he agreed with the Government's
testimony, was a lie. "
Page 289 U. S. 467
Held error, and not cured by a warning that the judge's
opinion of the evidence was not binding on the jury and that, if
they did not agree with it, they should find the defendant not
guilty.
62 F.2d 746 reversed.
Certiorari to review the affirmance of a sentence under the
Federal Narcotics Act.
Page 289 U. S. 468
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
Petitioner was convicted of violating the Narcotic Act. 26
U.S.C. ยง 692, 705. The conviction was affirmed by the Circuit Court
of Appeals (62 F.2d 746), and this Court granted certiorari.
Reversal is sought upon the ground that the instructions of the
trial court to the jury exceeded the bounds of fair comment and
constituted prejudicial error. After testimony by agents of the
government in support of the indictment, defendant testified,
making a general denial of all charges. His testimony is not set
forth in the record. Defendant's motion for a direction of verdict
and requests for rulings substantially to the same effect were
denied. The court instructed the jury concerning the rules as to
presumption of innocence and reasonable doubt, and stated generally
that its expression of opinion on the evidence was not binding on
the jury and that it was their duty to disregard the court's
opinion as to the facts if the jury did not agree with it. The
court ruled as matter of law that, if the jury believed the
evidence for the government, it might find the defendant guilty.
The court then charged the jury as follows:
"And now I am going to tell you what I think of the defendant's
testimony. You may have noticed, Mr. Foreman and gentlemen, that he
wiped his hands during his testimony. It is rather a curious thing,
but that is almost always an indication of lying. Why it should be
so, we don't know, but that is the fact. I think that every single
word that man said, except when he agreed with the Government's
testimony, was a lie. "
Page 289 U. S. 469
"Now, that opinion is an opinion of evidence, and is not binding
on you, and if you don't agree with it, it is your duty to find him
not guilty."
To this charge, the defendant excepted.
In a trial by jury in a federal court, the judge is not a mere
moderator, but is the governor of the rial for the purpose of
assuring its proper conduct and of determining questions of law.
Herron v. Southern Pacific Co., 283 U. S.
91,
283 U. S. 95. In
charging the jury, the trial judge is not limited to instructions
of an abstract sort. It is within his province, whenever he thinks
it necessary, to assist the jury in arriving at a just conclusion
by explaining and commenting upon the evidence, by drawing their
attention to the parts of it which he thinks important, and he may
express his opinion upon the facts, provided he makes it clear to
the jury that all matters of fact are submitted to their
determination.
Carver v.
Jackson, 4 Pet. 1,
29 U. S. 80;
Vicksburg & Meridian R. Co. v. Putnam, 118 U.
S. 545,
118 U. S. 553;
United States v. Philadelphia & Reading R. Co.,
123 U. S. 113,
123 U. S. 114;
Capital Traction Co. v. Hof, 174 U. S.
1,
174 U. S. 13-14;
Patton v. United States, 281 U. S. 276,
281 U. S. 288.
Sir Matthew Hale thus described the function of the trial judge at
common law:
"Herein he is able, in matters of law emerging upon the
evidence, to direct them, and also, in matters of fact to give them
a great light and assistance by his weighing the evidence before
them, and observing where the question and knot of the business
lies, and by showing them his opinion even in matter of fact; which
is a great advantage and light to laymen."
Hale, History of the Common Law, 291, 292. Under the Federal
Constitution, the essential prerogatives of the trial judge as they
were secured by the rules of the common law are maintained in the
federal courts.
Vicksburg & Meridian R. Co. v. Putnam,
supra; St. Louis, I.M. & S. Ry. Co. v. Vickers,
122 U. S. 360,
122 U. S. 363;
Slocum v.
New
Page 289 U. S. 470
York Life Insurance Co., 228 U.
S. 364,
228 U. S. 397;
Herron v. Southern Pacific Co., supra; Gasoline Products Co. v.
Champlin Co., 283 U. S. 494,
283 U. S.
498.
This privilege of the judge to comment on the facts has its
inherent limitations. His discretion is not arbitrary and
uncontrolled, but judicial, to be exercised in conformity with the
standards governing the judicial office. In commenting upon
testimony, he may not assume the role of a witness. He may analyze
and dissect the evidence, but he may not either distort it or add
to it. His privilege of comment in order to give appropriate
assistance to the jury is too important to be left without
safeguards against abuses. The influence of the trial judge on the
jury "is necessarily and properly of great weight," and "his
lightest word or intimation is received with deference, and may
prove controlling." This Court has accordingly emphasized the duty
of the trial judge to use great care that an expression of opinion
upon the evidence "should be so given as not to mislead, and
especially that it should not be one-sided;" that "deductions and
theories not warranted by the evidence should be studiously
avoided."
Starr v. United States, 153 U.
S. 614,
153 U. S. 626;
Hickory v. United States, 160 U.
S. 408,
160 U. S.
421-423. He may not charge the jury "upon a supposed or
conjectural state of facts, of which no evidence has been offered."
United States v.
Breitling, 20 How. 252,
61 U. S.
254-255. It is important that hostile comment of the
judge should not render vain the privilege of the accused to
testify in his own behalf.
Hicks v. United States,
150 U. S. 442,
150 U. S. 452;
Allison v. United States, 160 U.
S. 203,
160 U. S. 207,
160 U. S.
209-210. Thus, a statement in a charge to the jury that
"no one who was conscious of innocence would resort to concealment"
was regarded as tantamount to saying "that all men who did so were
necessarily guilty," and as magnifying and distorting "the proving
power of the facts on the subject of the concealment."
Hickory
v. United States, supra.
Page 289 U. S. 471
And the further charge that the proposition that "the wicked
flee when no man pursueth, but the innocent are as bold as a lion,"
was "a self-evident proposition" which the jury could "take . . .
as an axiom, and apply it" to the case in hand, was virtually an
instruction that flight was conclusive proof of guilt. Such a
charge
"put every deduction which could be drawn against the accused
from the proof of concealment and flight, and omitted or obscured
the converse aspect;"
it "deprived the jury of the light requisite to safely use these
facts as means to the ascertainment of truth."
Id. So
where the trial judge, in referring to the defendant's story of
self-defense, said, "All men would say that. No man created would
say otherwise when confronted by such circumstances," this Court
held that the comment practically deprived the defendant of the
benefit of his testimony.
It was for the jury to test the credibility of the defendant as
a witness, giving his testimony such weight under all the
circumstances as they thought it entitled to, as in the instance of
other witnesses, uninfluenced by instructions which might operate
to strip him of the competency accorded by the law.
Allison v. United States, supra. Similarly, where no
testimony had been offered as to the previous character of the
accused, it was prejudicial error for the trial court to comment
unfavorably upon his general character.
Mullen v. United
States, 106 F. 892, 895, per Day, C.J.
See also Parker v.
United States, 2 F.2d 710, 711;
O'Shaughnessy v. United
States, 17 F.2d 225, 228;
Cook v. United States, 18
F.2d 50;
Malaga v. United States, 57 F.2d 822.
In the instant case, the trial judge did not analyze the
evidence; he added to it, and he based his instruction upon his own
addition. Dealing with a mere mannerism of the accused in giving
his testimony, the judge put his own experience, with all the
weight that could be attached to it, in the scale against the
accused. He told the jury
Page 289 U. S. 472
that "wiping" one's hands while testifying was "almost always an
indication of lying." Why it should be so, he was unable to say,
but it was "the fact." He did not review the evidence to assist the
jury in reaching the truth, but, in a sweeping denunciation,
repudiated as a lie all that the accused had said in his own behalf
which conflicted with the statements of the government's witnesses.
This was error, and we cannot doubt that it was highly
prejudicial.
Nor do we think that the error was cured by the statement of the
trial judge that his opinion of the evidence was not binding on the
jury and that, if they did not agree with it they should find the
defendant not guilty. His definite and concrete assertion of fact,
which he had made with all the persuasiveness of judicial
utterance, as to the basis of his opinion, was not withdrawn. His
characterization of the manner and testimony of the accused was of
a sort most likely to remain firmly lodged in the memory of the
jury and to excite a prejudice which would preclude a fair and
dispassionate consideration of the evidence.
Starr v. United
States, supra; Mullen v. United States, supra; Wallace v. United
States, 291 F. 972, 974;
Parker v. United States, supra;
O'Shaughnessy v. United States, supra; Leslie v. United
States, 43 F.2d 288, 289.
The judgment must be
Reversed.