Trial judges typically feel a need to move along the busy daily/weekly/monthly/annual court docket one way or another, and that often leads many judges to relax the application of the rules of evidence in trials. That can be particularly true in bench trials, where judges assert that they are able to filter out evidence that they ultimately decide is inadmissible, or that they will simply give each piece of evidence the weight it deserves. Such relaxation of the application of the rules of evidence also can be seen in jury trials, including where the judge allows prosecution witnesses to testify to otherwise inadmissible hearsay matters after a prosecutor claims s/he will “tie up” the hearsay loose ends with subsequent testimony and evidence.

Unfortunately, once ink gets into a glass of milk, the ink cannot be retrieved. The same time considerations that lead judges to overrule any evidentiary objections that should have been sustained during a bench trial also means that the judge may not carefully screen out the admitted inadmissible evidence after all. Worse, the jury that hears indamissible hearsay that is not cured by subsequent testimony or evidence is not going to un-hear the inadmissible evidence no matter how well-crafted are a judge’s curative instructions to ignore the inadmissible evidence. No curative instruction can undo a juror’s decades-long human nature and experience of not filtering out anything the listener has heard.

Judges typically are generalists, and they are wise to give lawyers at least a brief opportunity to explain each of their objections and for the recipient of the objection to briefly reply. The body of statutory law, caselaw, evidentiary law, and procedural law is too vast for a judge to expect that the judge knows it all. Because that law is so vast, and to help the trial judge save time (and in some instances save face), the trial lawyer needs to be ready not only to succinctly, correctly and persuasively explain her or her evidentiary objection or response thereto, but should also be ready to hand the judge and opposing counsel the highlighted case or statute or other rule of law on which the lawyer bases a key evidentiary point of argument.

Similarly, judges are unfair at best, and often in contravention of the Fifth Amendment’s Due Process Clause, to prevent criminal defense lawyers from engaging in at least brief voir dire/cross examination questioning of a prosecuting witness before a potentially damning prosecution exhibit is admitted into evidence, particularly if the prosecutor will next proceed to ask damning questions on the damning exhibit that has been admitted into evidence.

Let us take, for example, the Virginia certificate of analysis that states a DWI defendant’s alleged breath alcohol level at the time of post-arrest breath testing. No judge should allow such certificates into evidence on the prosecutor’s motion before allowing defense voir dire/cross examination questioning of the operator of the Intox EC/IR II machine that was used on the defendant to test his breath alcohol content. To do otherwise amounts to accepting the operator’s credibility, reliability, recall, and procedural correctness at the very least through the operator’s having signed the certificate’s attestation clause that the operator followed the procedures of the Virginia Department of Forensic Science in conducting the breath test. Those DFS procedures include assuring that the suspect’s mouth is free of foreign substances for at least twenty minutes before testing; that the machine is free of excessive moisture, heat and dust; and that the machine is stored in a clean dry location that is only accessible for use by authorized personnel. By accepting the certificate of analysis into evidence without first allowing defense voir dire/cross examination questioning of the machine operator accepts that attestation clause as reliable without allowing the defendant not only to challenge not only whether the witness is reliable, credible and with sufficient recall, but also to challenge whether the witness properly and according to DFS procedure operated this claimed sophisticated piece of machinery that thusly requires a commensurate level of sophistication in understanding the machinery and using it.

Moreover, because Fitzgerald v. Com, 61 Va. App. 279 (2012) (discussed here) already limits a criminal defendant’s avenues for challenging the certificate of analysis, allowing voir dire/cross examination of the breath test operator is essential for not giving Fitzgerald more defense-damaging teeth than Fitzgerald already has .

Consequently, for a judge not to allow defense voir dire/cross examination questioning of a prosecution witness before a damning exhibit is allowed into evidence, presents not only a Due Process issue but also a possible perception of pro-prosecutorial bias of the judge, whether or not that bias exists, at least in the eyes of laypeople watching the trial, when a critical element of a sufficiently functioning judicial system is for the public to perceive judges as following their oaths of office.

Fortunately, or unfortunately depending on how one looks at the glass as partially full or empty, I have only encountered two judges in my entire career of trying over one hundred trials involving breath alcohol testing, where the judge has declined my request to voir dire/cross examine the breath test operator. However, that is two judges too many.

Perhaps because so few judges deny voir dire/cross examination on such matters, I have not yet found Virginia caselaw that addresses a trial judge’s refusal to allow defense voir dire/cross examination before a damning prosecution exhibit is received into evidence.

We do know, that Virginia’s Supreme Court generally favors allowing criminal defendants a reasonable opportunity to cross examine prosecution witnesses:

“Cross-examination is fundamental to the truth-finding process and is an absolute right guaranteed to the defendant by the confrontation clause of the Sixth Amendment. Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977). While the trial court has the discretion to see that the right of cross-examination is not abused, this discretion is to be employed only after the right “has been substantially and fairly exercised.” Moore v. Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961). In exercising the right, the defendant can elicit “any evidence … which tends to affect the credibility of accomplices or the weight of their testimony by showing what influences, if any, were brought to bear upon them.” Woody v. Commonwealth, 214, Va. 296, 297, 199 S.E.2d 529, 531 (1973).”

Shanklin v. Com. 222 Va. 862, 864 (1981).

More recently, Virginia’s Supreme Court, comparing witness sequestration to cross-examination, approvingly confirmed the long-held view that cross examination is “‘one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.’” Motley v. Tarmac, 258 Va. 98, 99 (1999).

Consequently, trial judges have nothing to lose and often much to gain by permitting at least brief voir dire/cross examination of prosecution witnesses before a damning exhibit is offered into evidence, and also need to think twice before allowing inadmissible hearsay into evidence to see if the prosecutor “ties together” the evidence to make it no longer inadmissible hearsay.