Delaware Trial Handbook § 3:4. GENERAL CONDUCT OF JUDGES

In addition to the many restrictions imposed upon trial judges by statutes and case law, judges are restricted in their conduct by the Delaware Judge’s Code of Judicial Conduct.30 These canons instruct judges to be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom judges deal in an official capacity.31 A judge should also act to ensure that  counsel maintain standards of professional etiquette.32 A judge should avoid undue impatience, irritation or sarcasm.33 A judge should also avoid any language or conduct that would lead the jury to suspect question the judge’s impartiality.34

Additionally, on November 10, 2003, the Delaware Supreme Court adopted its Principles of Professionalism for Delaware Judges, which provide that:

• A judge should be courteous, respectful and civil to lawyers, parties, witnesses, court personnel, and all other participants in the legal process.

• A judge should maintain control of the proceedings, recognizing that judges have both the obligation and the authority to ensure that all proceedings are conducted in a civil and respectful manner by counsel and the parties.

• A judge should be considerate of the time schedules of lawyers, parties, and witnesses, and the expenses attendant to litigation, in scheduling trials, hearings, meetings and conferences.

• A judge should be punctual in convening trials, hearings, meetings and conferences and notify counsel or pro se parties promptly if the judge becomes aware that a matter will not begin when scheduled.

• While endeavoring to resolve disputes efficiently, a judge should be considerate of the time constraints and pressures imposed on lawyers, parties or other participants in the legal process.

• A judge should allow a lawyer or pro se party to present a cause properly and to make a complete and accurate record, free from unreasonable or unnecessary judicial interruption.

• To the extent possible, a judge should give all issues in controversy deliberate, informed, impartial and studied analysis and consideration and explain, when necessary, the reasons for the decisions of the court.

• A judge should make all reasonable efforts to decide promptly all matters presented for decision.

• A judge should not employ hostile, demeaning or humiliating language in opinions or in written or oral communications with other judges, lawyers, parties, witnesses or court personnel.

• A judge should work in cooperation with other judges in this and other jurisdictions on matters relating to the availability of lawyers, parties, witnesses or court resources. A judge should not knowingly create a scheduling conflict with another judge’s judicial proceeding.

• A judge should ensure that court personnel act civilly and respectfully toward each other and toward judges, lawyers, parties, witnesses and all other participants in the legal process.

• A judge should not impugn the integrity or professionalism of any lawyer on the basis of the lawyer’s clients or cause.

• A judge should avoid procedures that needlessly increase litigation expenses and discourage unnecessary litigation expenses.

• A judge should refer to counsel by surname preceded by the preferred title (Mr., Mrs., Ms. or Miss), or by the professional title of attorney or counselor while in the courtroom. In any proceeding a judge should refer to all counsel in a like manner.

• A judge should be courteous and respectful in opinions, ever mindful that a position articulated by another judge is the result of that judge’s earnest effort to interpret the law and the facts correctly. A judge should endeavor to work with other judges to foster a spirit of cooperation in the mutual goal of enhancing the administration of justice.34.1

As it is the duty of the jury to determine the facts in a given case,35 it is improper for a judge to make any comment or express any opinion that directly or indirectly conveys to the jury the court’s estimation of the truth, falsity or weight of the evidence in relation to a matter at issue.36 Thus, a judge may not express a view that one piece of evidence should be given more weight than is given to a conflicting piece of evidence, or that the testimony of one witness is more credible than that of another witness.36.1 In a criminal case where the defense is that the criminal conduct never occurred, it is improper fo a judge to refer to the complaining witness as a “victim,” as this implicitly communicated to the jury that the judge believes a crime has been committed.36.2

It is not an improper comment on the evidence for a judge to explain a ruling on a matter of law raised during trial by referring to testimony and stating its legal effect.37 A judge may explain the legal significance that the law attaches to a particular factual finding, provided it is made clear to the jury that the judge is not expressing an opinion as to the existence or non-existence of the underling fact.37.1 Similarly, a statement by a judge, in charging the jury, of matters of fact that are uncontroverted and not in dispute or in issue is not an improper comment where the statement may be material for the proper explanation or application of the legal principles involved.38  Trial judges may properly combine a statement regarding a fact in issue with a declaration of law, provided the judge does not make any comment suggesting how the jury should resolve the issue.38.1

Motions to dismiss criminal cases and for acquittal are to be heard outside the presence of a jury, because a ruling by a judge on those motions is akin to a judge commenting on the sufficiency of the evidence, which would be the equivalent of an improper comment on the evidence before a jury.38.2

29. Ch. Ct. R. 63; Super. Ct. Civ. R. 63; Comm. Pls. Ct. Civ. R. 63; Fam. Ct. Civ. R. 63; J.P. Ct. Civ. R. 21.

30. Supr. Ct. R. 84.

31. Del. Code Jud. Cond., Canon 3(A)(3).

32. Dutton v. State, 452 A.2d 127, 140-41 (Del. 1982); Del. Code Jud. Cond., Canon 3(A)(3).

33. Wright v. State, 405 A.2d 685, 689 (Del. 1979).

34. Gattis v. State, 955 A.2d 1276, 1284-85 (Del. 2007), cert. denied, 129 S.Ct. 914 (2009); Wright v. State, 405 A.2d 685, 689 (Del. 1979); Buckley v. R. H. Johnson & Co., 25 A.2d 392, 397 (Del. Super. 1942).

34.1. Principles of Professionalism for Delaware Judges (Nov. 10, 2003).

35. See Del. Const. art. IV, § 19.

36. Herring v. State, 80 5 A.2d 872, 876 (Del. 2002); Wright v. State, 405 A.2d 685, 689 (Del. 1979); State Highway Dept.v. Buzzuto, 264 A.2d 347, 351 (Del. 1970); Porter v. State, 243 A.2d 699, 701 (Del. 1968); Seeney v. State, 211 A.2d 908, 909 (Del. 1965); Halko v. State, 58 Del. 47, 204 A.2d 628, 629 (Del. 1964); Philadelphia, B. & W. R. Co. v. Gatta, 85 A. 721, 729 (Del. 1913); State v. Bailey, 352 A.2d 415, 419 (Del. Super. 1976), aff’d, 363 A.2d 312 (Del. 1976), cert. denied, 429 U.S. 1072 (1977); Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 711 (Del. Super. 1967); State v. Carey, 178 A. 877, 882 (Del. O. & T. 1935).

36.1. Hall v. State, 473 A.2d 352, 356 (Del. 1984); Polite v. State, No. 469, 1995, slip op. at 8, Veasey, J. (Del. July 12, 1996) (ORDER), disposition reported at 687 A.2d 196 (Del. 1996) (TABLE).

36.2. Fritzinger v. State, ___ A.2d ___, ___ (Del. 2010).

37. Herring v. State, 805 A.2d 872, 876 (Del. 2002); State v. Halko, 193 A.2d 817, 829 (Del. Super. 1963), aff’d, 58 Del. 47, 204 A.2d 628 (Del. 1964). See also Wilmington v. Parcel of Land, 607 A.2d 1163, 1170 (Del. 1992).

37.1. Hall v. State, 473 A.2d 352, 356 (Del. 1984).

38. Truxton v. Fait & Slagle Co., 42 A. 431, 436-37 (Del. 1899).

38.1. Herring v. State, 805 A.2d 872, 876 (Del. 2002); Capital Management Co. v. Brown, 813 A.2d 1094, 1100 (Del. 2002).

38.2. State v. Shaia, ID #9903009527, Stokes, J. (Del. Super. Feb. 10, 2000), aff’d mem., 765 A.2d 953 (Del. 2000).

© 2010  David L. Finger