Delaware Trial Handbook § 3:9. THE JUDGE AS THE TRIER OF FACT

In circumstances where there is no right to trial by jury74 or where the parties waive their right to trial by jury,75 the judge sits as the trier of fact. In such cases the judge is not bound to accept as fact all evidence admitted with or without objection. Rather, the judge retains the power to examine the demeanor of witnesses and other evidence and draw conclusions about their credibility, consistency and factual relevance.76 In so doing, the court will consider the means of knowledge, strength of memory and opportunity for observation of each witness; the reasonableness or unreasonableness of the testimony; the motives actuating the witness; the fact, if it is a fact, that the testimony has been contradicted; any bias, prejudice or interest of the witness; the manner or demeanor of the witness while testifying; and all other facts and circumstances shown by the evidence which affect the credibility of the testimony. If the court finds the testimony conflicting by reason of inconsistencies, the court must reconcile the testimony as reasonably as possible so as to make one harmonious story of it all. If the court cannot do that, the court must give credit to that portion of the testimony which, in its judgment, is most worthy of credit and disregard any portion of the testimony which, in its judgment, is unworthy of credit.77

In a non-jury trial, strictness as to the rules governing the admissibility of evidence is not as great as in jury trials, since the judge is better able than a jury to separate the relevant and competent evidence from the irrelevant and incompetent.78 The judge should ordinarily receive all evidence that is not clearly inadmissible.79 Disputed evidence may be received subject to a post-trial ruling on admissibility, as is the practice in the Court of Chancery.80 The fact that incompetent evidence is admitted will not be deemed prejudicial error provided that there is sufficient competent evidence to support the judgment or finding. There is a presumption that the judge disregarded the incompetent evidence and decided the matter from a consideration of competent evidence only.81

One unique feature of a bench trial is the ability to seek to expand the record-post trial. Before a judge issues a ruling (usually the interim period where the judge is preparing a written decision), a party can move to reopen the record to allow additional evidence to be submitted.  The decision whether to grant such a motion is a matter for the court’s discretion.  Courts will exercise their discretion in favor of admitting the additional evidence where doing so will serve the interests of fairness and substantial justice.  The factors courts will consider include the materiality of the evidence sought to be admitted, the reasons why the moving party did not seek to introduce the evidence at trial (i.e., was the evidence discoverable prior to trial), the length of time that has passed between the conclusion of the trial and the request to reopen the record, the need for judicial efficiency, and whether reopening the record will cause prejudice to the opposing party.81.1.

74. See §§ 6:1-2.

75. See § 6:3.

76. Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1085 n.30 (Del. 2009) (citing treatise); Mundy v. Devon, 806 A.2d 750, 755 (Del. 2006); Richards v. State, 865 A.2d 1274, 1280-1281 (Del. 2004); J.D. Liquors, Inc. v. Home Owners Expert Service, Inc., CA. No. 1229, slip op. at 1, Walsh, J. (Del. Super. Jan. 12, 1976); Schaener v. McCarley, C.A. No. 0001-02-89, slip op. at 1-2, Trader, J. (Del. Comm. Pis. Mar. 13, 1990); Bureau of Child Support Enforcement v. Burke, No. D-4606, slip op. at 2 n.l, Poppiti, J. (Del. Fam. July 22, 1982). See also Matter of Langmeier, C.A. No. 78696, slip op. at 5-6, Brown, C. (Del. Ch. June 8, 1982).

77. Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1085 n.30 (Del. 2009) (citing treatise); State v. Row, Cr. A. Nos. K-93-09-0356-0357, slip op. at 2-3, Steele, J. (Del. Super. Feb. 1, 1994). See also In the Matter of Rick, C.M. No. 6920, slip op. at 3, Chandler, V.C. (Del. Ch. Mar. 23, 1994), aff’d mem., 659 A.2d 228 (Del. 1995).

78. Rodriguez v. Wong, 633 A.2d 747, 749 (Del. Fam. 1993); State v. Phillips, C.A. No. 276, slip op. at 4, Hartnett, V.C. (Del. Ch. Apr. 25, 1980). See also Matter of Langmeier, C.A. No. 78696, slip op. at 5-6, Brown, C. (Del. Ch. June 8, 1982) (noting that evidentiary issue “is not as critical as it might be were this not a nonjury trial”).

79. Rodriguez v. Wong, 633 A.2d 747, 749 (Del. Fam. 1993); Aldino T.R. v. Brenda W., No. CS9I-4940, slip op. at 7, Miliman, J. (Del. Fam. Mar. 23, 1990).

80. Trans World Airlines, Inc v. Summa Corp., C.A. No. 1607, slip op. at 7, Walsh, V.C. (Del. Ch. Mar. 12, 1985).

81. Kurzmann v. State, 903 A.2d 702, 709 (Del. 2006); Bennett v. Barber, 79 A.2d 363, 365 (Del. 1951). See also Truman v. Watts, 598 A.2d 713, 720 (Del. Fam. 1991); State v. Charbonneau, ID #0207003810, slip op. at 20-21, Stokes, J. (Del. Super. Sept. 8, 2006) (citing treatise); Aldino T.R. v. Brenda W., No. C591-4940, slip op. at 6, Millman, J. (Del. Fam. Mar. 23, 1990).

81.1. In re Rural Metro Corporation Shareholders Litig., C.A. No. 6350-VCL, slip op. at 6-7, Laster, V.C. (Dec. 17, 2013); Lola Cars International Limited v. Krohn Racing, LLC, C.A. Nos. 4479-VCN & 4886-VCN, slip op. at 2, Noble, V.C. (Apr. 12, 2010).

© 2014  David L. Finger