The Constitution of the State of Delaware provides that “[j]udges shall not charge jurors with respect to matters of fact, but may state the questions of fact in issue and declare the law.”20 This provision was adopted to ensure that judges confined themselves to making determinations of law and to protect the province of the jury on factual issues.20.1 As such, this has been interpreted to mean that judges, in charging juries (and at any other time during the trial), may not make any improper comment on the evidence presented at trial.21
An improper comment on the evidence is some expression by the judge directly or indirectly conveying to the jury the court’s estimation of the truth, falsity or weight of the evidence.22 For example, an instruction that assumes the truth of a controverted fact is improper.23 Further, when on cross-examination it is revealed that the State agreed not to prosecute a witness on pending charges in exchange for the testimony, it is improper for the judge to instruct the jury that the witness is entitled to a presumption of innocence.24 A “missing witness” instruction, i.e., an instruction that a party’s failure to produce witnesses at trial permits an inference that the testimony of such witnesses would be unfavorable to such party, has been deemed not to be a comment on the evidence, as the instruction amounts only to a legal ruling on the admissibility of evidence.25 In criminal cases, an instruction that evidence of the defendant’s good character is sufficient to raise reasonable doubt as to the defendant’s guilt is also an improper comment upon the evidence.26
The prohibition on improper comments upon the evidence does not bar all comments, however. If a party has provided no evidence on a point, it is not improper for the judge to so instruct the jury.27 Where a fact has not been established beyond dispute, it is not improper to instruct the jury that there is “some evidence” supporting a fact.28 Judges may instruct juries as to judicially established facts, for example, that an intoxilyzer uses a scientifically sound method of measuring the alcohol content of a person’s blood by weight.29 Judges may also instruct juries to disregard statements in documents containing legally incorrect assumptions of fact.30 It is also not an improper comment upon the evidence for a judge to explain the legal significance that the law attaches to a particular factual finding, where the fact is undisputed,31 or, if disputed, where the judge expresses no opinion as to the existence or non-existence of the underlying fact.32 For example, when giving a limiting instruction pursuant to Delaware Rule of Evidence 105, a trial judge must identify the fact at issue and explain the legal prohibition against using certain evidence that is used to establish the contested fact for any other purpose.32.1
It is not improper for a judge to read a statute that states the evidentiary value of a particular piece of evidence,33 nor is it improper for a judge to explain to a jury the purpose of a statute.34 It is not improper to instruct a jury that flight constitutes circumstantial evidence of guilt.35 The judge may explain a potentially confusing pleading filed by a third party not present at trial.35.1
A “missing witness” instruction, i.e., an instruction that a party’s failure to produce witnesses at trial permits an inference that the testimony of such witnesses would be unfavorable to such party, has been deemed not to be a comment on the evidence, as the instruction amounts only to a legal ruling on the admissibility of evidence.35.2
20. Del. Const. art, IV, § 19.
20.1. Herring v. State, 805 A.2d 872, 875-76 (Del. 2002); Lunnon v. State, 710 A.2d 197, 201 (Del.1998).
21. Wright v. State, 405 A.2d 685, 689 (Del. 1979); State Highway Dept. v. Buzzuto, 264 A.2d 347, 351 (Del. 1970); Baltimore & 0. R. Co. v. Hawke, 143 A. 27, 32-33 (Del. 1928); Gibson v. Gillespie, 152 A. 589, 593 (Del. Super. 1928).
22. Herring v. State, 805 A.2d 872, 875-76 (Del. 2002); Capital Management Co. v. Brown, 813 A.2d 1094, 1100 (Del. 2002); Hall v. State, 473 A.2d 352, 356 (Del. 1984); State v. Carey, 178 A. 877, 883 (Del. O. & T. 1935).
23. Wiggins v. State, 58 Del. 421, 210 A.2d 314, 316 (Del. 1965); Daniels v. State, 48 A. 196 (Del. 1901).
24. Ward v. State, 366 A.2d 1194, 1196 (Del. 1976).
25. Lunnon v. State, 710 A.2d 197, 201 (Del. 1998). In so ruling, the Court did not address earlier Delaware precedent indicating to the contrary. See Boyer v. State, 436 A.2d 1118, 1124 (Del. 1981).
26. State v. Snow, 51 A. 607, 608 (Del. Gen. Sess. 1901).
27. Smith v. State, 126 A.2d 142, 146 (Del. 1956); State v. Carey, 178 A. 877, 882-83 (Del. O. & T. 1935).
28. Pinkett v. Brittingham, 567 A.2d 858, 859-60 (Del. 1989).
29. Hamann v. State, 565 A.2d 924, 929 (Del. 1989).
30. Wilmington v. Parcel of Land, 607 A.2d 1163, 1169-70 (Del. 1992).
31. Herring v. State, 805 A.2d 872, 875-76 (Del. 2002); Truxton v. Fait & Slagle Co., 42 A. 431, 437 (Del. 1899).
32. Hall v. State, 473 A.2d 352, 356 (Del. 1984).
32.1. Herring v. State, 805 A.2d 872, 875-76 (Del. 2002).
33. Nanticoke Memorial Hospital, Inc. v. Uhde, 498 A.2d 1071, 1074 (Del. 1985).
34. Cloud v. State, 154 A.2d 680, 683 (Del. 1959).
35. State v. Shockley, Cr. A. Nos. 584-0029-0031 & 584-09-1029-1030, slip op. at 14, Ridgely, J. (Del. Super. Mar. 9, 1988), aff’d, 565 A.2d 1373 (Del. 1989).
35.1. Capital Management Co. v. Brown, 813 A.2d 1094, 1100 (Del. 2002).
35.2. Peak v. State, No. 292, 1998, slip op. at 2-3, Walsh, J. (Del. Mar. 15, 1999) (ORDER), disposition reported at 734 A.2d 159 (Del. 1999) (TABLE).
© 2010 David L. Finger