A trial court owes a duty of neutrality to the parties and may not favor one side or the other. J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009).  Over the course of my career, I have conducted numerous trials where lawyers/prosecutors try and introduce evidence without first establishing the proper foundations. When I was a young Assistant Public Defender, one of my mentors gave me a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials. I immediately recognized that this sheet was worth more than its weight in gold. In every trial, I have my checklist ready so I can make the proper objections to exclude improper evidence. But what do you do, when you make an objection and the Judge agrees with the objection but tells the opposing side to lay the proper predicate for evidence.

Any attorney who has conducted trials has come across this situation numerous times. Is the Judge now departing from neutrality to tell the other side how to overcome your objection? Is the Judge departing from Neutrality?

The Florida Appellate Court for the Fourth District recently decided M.W. vs The State of Florida. In that case, the State charged M.W. in a one-count petition for delinquency after M.W. was arrested for shoplifting headphones at an Apple Store. According to statute, “if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft in the first degree.” § 812.014(2)(e), Fla. Stat. (2017). At trial, the State was examining the store security officer who arrested M.W. when the following exchange occurred:

WITNESS: We basically, because he is a juvenile we have [to] call the parent. And the fact that the amount was 299.95 —

DEFENSE: Objection, hearsay.

JUDGE: Establish how he knows.

STATE: Your Honor, he has personal knowledge.

JUDGE: Establish.

Thereafter, the State asked the appropriate set of questions to establish the value of the headphones at $299.95. On appeal, M.W. argues that this exchange shows the trial judge entering the fray to an impermissible degree in order to establish a key fact of the proceeding. Conceding that the defense at trial lodged no objection to the trial court’s participation in this exchange, M.W. further argues fundamental error.

The Appellate Court turned to  J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009) for guidance. In J.L.D., a juvenile was adjudicated delinquent for grand theft of a motor vehicle. During the restitution phase of the trial, the trial judge took over the questioning of witnesses in an effort to establish the amount of damages. The Second District concluded that the trial judge “departed from a position of neutrality in an attempt to elicit testimony in support of the restitution award.” Id. at 26. The Second District, however, determined that the error was harmless because the trial court’s conduct did not increase the restitution award. Id.

The Appellate Court also looked at Lyles v. State, 742 So. 2d 842, 843 (Fla. 2d DCA 1999). In Lyles the Second District determined that a trial judge, in a probation revocation proceeding, “committed fundamental error by sua sponte ordering Lyles’ fingerprints for the purpose of identification and bifurcating the hearing to allow additional testimony.” Id. at 843. The extent to which the trial judge intruded in the proceeding led the Second District to conclude that the defendant was deprived of an impartial judge. Id.; see also Sparks v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999).

M.W. cites to both J.L.D. and Lyles to establish that a trial judge’s decision to enter the fray may rise to the level of fundamental error. M.W. supports these cases with several, other non-fundamental error cases that confirm the proposition that a trial court may not breach neutrality. See Seago v. State, 23 So. 3d 1269, 1272 (Fla. 2d DCA 2010) (holding that it was improper for the trial judge to suggest to a witness that her testimony must be identical to that of her pretrial deposition); Evans v. State, 831 So. 2d 808, 811 (Fla. 4th DCA 2002) (holding that the trial judge impermissibly suggested during cross-examination that the prosecution inquire into defendant’s immigration status); Asbury v. State, 765 So. 2d 965, 965 (Fla. 4th DCA 2000) (holding that, at a suppression hearing, the trial judge impermissibly prompted the State to present evidence and recall witnesses).

The Appellate Court decided that the trial judge in M.W. vs The State of Florida did not enter the fray to an extent or a magnitude close to the intrusions of the trial judges in M.W.’s cited cases. In this instance, the trial judge merely told counsel for the State to lay a proper predicate for the evidence the State knew it was required to present. The trial judge neither asked a question of the witness nor told the State which question to ask of the witness. In other words, the trial judge did not cross a line and assume the role of the prosecutor. The Court determined that the judge’s conduct fell within a trial court’s latitude to regulate the course of a trial in his courtroom. Hahn v. State, 58 So. 2d 188, 191 (Fla. 1952); R.W. v. Dep’t of Children & Families, 189 So. 3d 978, 980 (Fla. 3d DCA 2016). It also fell within the right of a trial judge to “exercise reasonable control” over the interrogation of witnesses. See § 90.612(1), Fla. Stat. (2017).

Although the Judge was permitted to regulate the course of a trial, it is important to make the objection anyway. I have found that other lawyers/prosecutors sometimes don’t have a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials and/or don’t remember all of the proper foundation questions. Although the Judge can tell him to lay a proper foundation, he cannot tell him what the foundation questions are.