221.1Duties/Conduct of Trial Judge

Duty To Be Fair and Impartial

Every person charged with a crime in North Carolina has a right to a fair trial before an impartial judge and an unprejudiced jury. State v. Harris, 308 N.C. 159 (1983); State v. Carter, 233 N.C. 581 (1951). Additionally, the Due Process Clause of the U.S. Constitution imposes on the trial judge a duty of absolute impartiality, and he or she must supervise and control a defendant’s trial to ensure fair and impartial justice for both parties. See Tumey v. Ohio, 273 U.S. 510 (1927); State v. Fleming, 350 N.C. 109 (1999); Ponder v. Davis, 233 N.C. 699 (1951).

If a party has reasonable grounds to believe that the judge cannot fulfill this duty, or that he or she has violated that duty in the manner described below, the party may move for the judge’s recusal. For more information on this process, see the related entry on Motion to Recuse: Judge or Prosecutor. 

Expression of Opinion Prohibited

A judge may not express an opinion, either explicitly or implicitly, regarding any question of fact to be determined by the jury. G.S. 15A-1222; State v. Crummy, 107 N.C. App. 305 (1992). This statutory prohibition does not apply to comments made outside the presence of the jury. State v. Fleming, 350 N.C. 109 (1999). Additionally, a judge may not express an opinion during the jury charge as to whether a fact has been proven. G.S. 15A-1232. The trial judge must abstain from conduct or language that tends to discredit or prejudice a party’s case because the judge holds an exalted station and his or her opinion is greatly respected by the jury. State v. Allen, 353 N.C. 504 (2001) (“The slightest intimation from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury....”).

If the trial judge has expressed an improper opinion before the jury, the resulting prejudice to the defendant is “virtually impossible to cure.” State v. Clanton, 20 N.C. App. 275, 277 (1973). However, not every indiscreet or improper remark by a trial judge will warrant relief. Whether the defendant was deprived of a fair trial by the trial judge’s comments, questions, or actions “must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances” with “the burden of showing prejudice being upon the appellant.” State v. Faircloth, 297 N.C. 388, 392 (1979). A new trial will only be awarded if the remarks by the trial judge went to the “heart” of the case. State v. Sidbury, 64 N.C. App. 177 (1983); State v. Whitted, 38 N.C. App. 603 (1978).

1. Examples - Permissible Comments or Remarks
   
   1. Referring to the defendant as “the defendant,” and refusing defense request that the defendant only be referred to by name. See State v. Brown, 306 N.C. 151 (1982).
   2. Using the word “victim” when referring to the alleged victim of the crime. See State v. Davis, 265 N.C. App. 512 (2019); State v. Gaines, 345 N.C. 647 (1997); State v. Hill, 331 N.C. 387 (1992).
   3. Making and announcing ordinary rulings during the course of the trial. See State v. Weeks, 322 N.C. 152 (1988); State v. Welch, 65 N.C. App. 390 (1983).
   4. Explaining the role of the prosecutor and defense attorney to the jury. See State v. Hudson, 54 N.C. App. 437 (1981).
2. Examples – Impermissible Comments or Remarks
   
   1. Statements indicating judge’s belief in the defendant’s guilt. See State v. Guffey, 39 N.C. App. 359, 361 (1979) (trial judge stated that defendant was “pretty busy that day” since the indictment reflected two different victims).
   2. Remarks tending to suggest the facts which should be found by the jury. See State v. Blue, 356 N.C. 79 (2002) (trial judge’s remark that the front porch, where the offense allegedly took place, was not in defendant’s home denied defendant the coverage of defense of habitation and necessitated a new trial).
   3. Comments tending to belittle or humiliate a party’s cause or his or her counsel before the jury. See State v. Lynch, 279 N.C. 1 (1971) (trial judge’s blanket instruction to the court reporter to overrule any objection made by defendant’s counsel necessarily belittled both defendant’s cause and his attorney in the eyes of the jury); State v. Frazier, 278 N.C. 458, 464 (1971) (awarding a new trial because a series of comments by the trial judge, when viewed cumulatively, portrayed such an antagonistic attitude toward the defense that they breached “the cold neutrality of the law . . . to the prejudice of this defendant”).
   4. Expressions concerning the credibility of witnesses. See State v. Hensley, 120 N.C. App. 313, 323 (1995) (trial judge’s refusal to recall a child witness because doing so would be “very traumatic” and “injurious” to the witness, amounted to an expression that the judge believed the witness).
   5. Conduct indicating an opinion about the credibility of the defendant. See State v. Jenkins, 115 N.C. App. 520 (1994) (improper expression of opinion about defendant’s credibility where trial judge turned his back to the jury for 45 minutes while defendant testified on direct examination).
   6. Warnings or admonitions to witnesses concerning the consequences of committing perjury. See State v. Locklear, 309 N.C. 428 (1983) (trial judge’s actions in admonishing the witness and threatening her with imprisonment and a fine invaded the province of the jury, probably caused the witness to change her testimony, and may have deprived defendant of a fair trial before an impartial judge).
   7. Statements concerning sentencing. See State v. Griffin, 44 N.C. App. 601 (1980) (trial judge improperly expressed an opinion on defendant’s guilt where, prior to the return of a verdict, the foreman asked if the jury could explain its decision and the judge made remarks about sentencing which conveyed an assumption that the jury had reached a guilty verdict and left little doubt that he expected a guilty verdict).
   8. Improper comments during jury selection. See State v. Campbell, 2021-NCCOA563, 866 S.E.2d 325 (2021) (finding structural error and reversing conviction where judge improperly expressed personal opinion and injected a discussion of race and religion in remarks to the venire during jury selection - the judge's comments were likely to make other jurors "reluctant to respond openly and frankly to questions during jury selection regarding their ability to be fair and neutral, particularly if their concerns arose from their religious beliefs").

Questioning Witnesses

A trial judge may direct questions to a witness in order to clarify the witness’s testimony and to promote a better understanding of it. See State v. Whittington, 318 N.C. 114 (1986); State v. Alston, 38 N.C. App. 219 (1978). Additionally, Rule of Evidence 614(b) specifically allows the trial judge to “interrogate witnesses, whether called by itself or by a party.” Rule 614(c) provides that no objection is necessary “to questions propounded to a witness by the court but it shall be deemed that proper objection has been made and overruled.”

However, a trial judge may not, through his or her questions, express an opinion regarding the guilt of the defendant, the witness’s credibility, or whether any fact essential to the state’s case has been proved. See State v. Yellorday, 297 N.C. 574 (1979); State v. Lowe, 60 N.C. App. 549 (1983). A judge must conduct his or her questioning carefully and in a manner that avoids prejudice to the parties. If the judge expresses an opinion by the tenor, frequency, or persistence of his or her questions, error has occurred in violation of G.S. 15A-1222. State v. Rinck, 303 N.C. 551 (1981); State v. Currie, 293 N.C. 523 (1977). If the expression of opinion might reasonably have had a prejudicial effect on the defendant’s trial, the error will not be considered harmless and a new trial will be awarded. State v. Gregory, 340 N.C. 365 (1995). As with other remarks and conduct prohibited by G.S. 15A-1222, the prohibition against the trial judge expressing an opinion when questioning a witness applies only when the jury is present. State v. Rogers, 316 N.C. 203 (1986).

Judge’s Absence During Proceedings

Occasionally, the trial judge will temporarily leave the courtroom during the proceedings (for example, during portions of jury selection or closing argument). See, e.g., State v. Parker, 119 N.C. App. 328 (1995) (judge absent from the courtroom during portions of closing argument); State v. Colbert, 65 N.C. App. 762, 769 (1984) (Becton, J., dissenting) (noting that “[i]t is not uncommon for trial judges to be inattentive, or even absent themselves from the courtroom, during jury selection”), rev’d on other grounds, 311 N.C. 283 (1984); State v. Soloman, 40 N.C. App. 600, 604 (1979). 

North Carolina cases directly on point for this issue are limited, but the North Carolina Supreme Court has stated that “it is well established that the absence of the judge from the proceedings will not constitute reversible error unless the record shows that something occurred which would harm the defendant.” State v. Arnold, 314 N.C. 301, 308 (1985); see also State v. Smith, 162 N.C. App. 46 (2004) (quoting Arnold but declining to address defendant’s contention that the trial judge erred by leaving the courtroom during a portion of the prosecutor’s closing argument because a new trial had been granted on other grounds); see also State v. Levya, 181 N.C. App. 491 (2007) (judge left during jury selection and allowed parties to dismiss jurors by stipulation in his absence – court found it to be error, but defendant failed to show it caused any prejudice).

In some circumstances the judge’s absence could be viewed as expressing an opinion to the jury in violation of G.S. 15A-1222; for example, if the judge leaves only during the defendant’s closing argument, it may give the impression that the argument was unimportant or not worth hearing. See, e.g., United States v. Mortimer, 161 F.3d 240, 242 (3d Cir. 1998) (although court did not require defendant to show prejudice since it found the absence of the judge during defendant’s closing argument to be structural error, it noted that “[p]rejudice to the defendant from the jury inferring that the defense was not worth listening to may have occurred”); see also State v. Jenkins, 115 N.C. App. 520 (1994) (improper expression of opinion about defendant’s credibility where trial judge turned his back to the jury for 45 minutes while defendant testified on direct examination).

Some courts in other jurisdictions have found that a judge’s absence during trial violates various constitutional rights, but there is a split of authority among these courts over whether a trial judge’s absence from the bench is reversible error per se, or whether it is subject to harmless error analysis. See, e.g., Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995) (so noting and collecting cases).

Comment on the Verdict Prohibited

Once a verdict is returned, the trial judge is prohibited from commenting on it in criminal cases in open court in the presence or hearing of any member of the jury panel. If he or she comments on the verdict, or praises or criticizes the jury on account of its verdict, any defendant whose case is calendared for that session of court is entitled to a continuance of his or her case to a time when all members of the jury panel are no longer serving. See G.S. 15A1239; see also G.S. 1-180.1. The right to a continuance is waived by failing to move to continue before trial. State v. Neal, 60 N.C. App. 350 (1983). Under the provisions of G.S. 15A-1239 and G.S. 1-180.1, a continuance is the only remedy a defendant may seek for a judicial comment on the verdict.