People v. Adler
In People v. Adler, 629 P.2d 569 (Colo. 1981), the issue was whether the value of the property involved, a stereo, exceeded $ 200. A police officer testified that while undercover, he purchased the stereo for $ 234 from another police officer.
The trial court questioned whether that was sufficient to establish the value of the stereo, and as a result, the prosecution called another witness to testify on the value.
The Colorado court said that whether the prosecution should be granted leave for the late endorsement of another witness was a matter of discretion, but the more troublesome question was the defendant's objection to the conduct of the trial judge in allowing the prosecution's new witness to be endorsed.
In Adler, supra, comments from both counsel and the trial judge reflected that during the discussion off the record, out of the jury's presence, that the trial judge had indicated that the prosecution might not have produced sufficient evidence of the value to establish a prima facie case.
The judge apparently suggested that another witness be called to establish the value. The prosecution heeded this suggestion and obtained a witness on the issue during the noon recess.
The Colorado court looked to I ABA Standards for Criminal Justice 6-1.1(a) (2d ed. 1980), which provides:
The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law.
ABA Standards for Criminal Justice at 6.6.
The court in Adler then referenced the commentary to that standard:
It is appropriate for the trial judge from time to time to intervene in the conduct of a case. Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts. The judge may interrogate a witness after a cross-examination that appears to be misleading to the jury. The judge may also give interim explanations to the jury of the procedure of the trial . . . . The judge should be aware that there may be a greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise authority when necessary, the judge should avoid trying the case for the lawyers. 6-1.1(a) at 6.7 to 6.8.
Nonetheless, the Adler court was quick to point out that when a trial judge elects to raise matters to promote a just determination of a trial, he must take great care to ensure that he does not become an advocate, citing People v. Martinez, 185 Colo. 187, 523 P.2d 120 (1974) (reversible error is committed where, in absence of prosecutor at hearing on motion to suppress evidence, trial judge called witnesses, presented evidence, cross-examined defense witnesses, objected to defense counsel's questions, and ruled on defense counsel's objections to court's questions of witnesses).
The test adopted by the Colorado court was whether the trial judge's conduct so departed from the required impartiality as to deny the defendant a fair trial. See People v. Corbett, 199 Colo. 490, 611 P.2d 965 (1980). In People v. Adler, 629 P.2d 569 (Colo. 1981), the court concluded that although pointing out a possible defect in the prosecution's case may have been ill advised, it was held that such conduct did not result in a breach of that test.