May Magistrates Be Compelled to Testify about Their Decision-Making Processes?

When a defendant move to dismiss DWI charges based on a violation of his pre-trial release rights, the State’s first response is predictable: Subpoena the magistrate who presided over the defendant’s initial appearance. And in case after case, our appellate courts have considered testimony from magistrates in determining whether a defendant’s rights to pretrial release were violated. See, e.g., State v. Labinski, 188 N.C. App. 120 (2008) (finding statutory violation based in part on magistrate’s testimony that he imposed an impaired driving hold because he thought anyone charged with DWI with an alcohol concentration of at least 0.08 would possibly hurt himself or someone else), State v. Bumgarner, 97 N.C. App. 567 (1990) (finding that impaired driving hold was warranted based on magistrate’s consideration of trooper’s testimony, the magistrate’s personal observations, and the results of the sobriety test, which revealed a 0.14 alcohol concentration). Recently, however, the State’s predictable reaction has met with some unexpected resistance: a motion to quash filed by the state attorney general.

Judicial Privilege. Though I haven’t seen any of these motions, my understanding is that they rest upon the long-established rule that that a judge may not be compelled to testify about her mental process in reaching a judicial decision. The United States Supreme Court recognized that principle more than a century ago in Fayerweather v. Ritch, 195 U.S. 276 (1904), ruling that it was error to admit testimony from a trial judge regarding his mental processes in reaching a judgment in an earlier case. The Court reasoned that judgments were solemn records that parties had a right to rely upon and “ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.” Id. at 306-07. The principle has been applied in similar contexts by several lower courts. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 220-21 (6th Cir. 1995) (holding in habeas case that the trial court committed plain error by considering and relying upon the testimony of sentencing judge as to his thought processes in sentencing the petitioner ten years earlier); Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11th Cir. 1982) (“[P]ost-decision statements by a judge or juror about his mental processes in reaching decision may not be used as evidence in a subsequent challenge to the decision.”)

In addition to the Fayerweather final judgment justification, courts have justified the prohibition against compelled judicial testimony as necessary to protect the integrity of the legal system. See, e.g., United States v. Roebuck, 271 F. Supp. 2d 712, 722 (D.V.I. 2003) (ruling that judge could not be compelled to answer questions proposed by defendant that related to the judge’s denial of a motion for his disqualification); Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D. Texas 1992) (granting motion to quash subpoenas for oral depositions served on judicial law clerks and commenting that “public inquiries by the litigants as to the internal operations and communications of the Court will, not may, destroy the integrity of our present legal system.”).

Limitations. Judicial privilege, even where recognized, is limited. Judicial officers may be compelled to testify regarding facts “that do not probe into or compromise the mental processes employed in formulating the judgment in question.” See Standard Packaging Corp. v. Curwood, Inc., 365 F. Supp. 134, 135 (N.D. Ill. 1973).

Scope. In addition to the limitation mentioned above, the application of the privilege to contexts in which there is no recorded judgment is unclear. For example, the court in State ex rel. Childs v. Hayward, 248 A.2d 88 (N.H. 1968), held that the privilege did not prohibit a defendant from subpoenaing a justice of the peace to testify regarding what additional evidence beyond that set forth in the written application for a search warrant was presented to him. While the court agreed “that no magistrate should be subjected to interrogation with respect to his mental processes or the reasons for his decision, nor should he be subjected to interrogation with respect to the evidence presented before him when there is an existing record thereof,” it explained that judicial officers who do not preside over courts of record, are not “exempt from giving testimony as to what evidence was presented before them, when no record of such evidence was made.” Id. at 90.

North Carolina’s view. North Carolina’s courts have said relatively little about judicial privilege. The state supreme court in State v. Simpson, 314 N.C. 359 (1985), considered the defendant’s claim on appeal that the trial court erred by refusing to allow him to call the district court judge who presided over his initial appearance as a witness. The defendant sought to proffer this testimony in support of his insanity defense. Noting concerns related to judicial privilege, Simpson cited cases from other jurisdictions holding that a judge should not be called as a witness if the litigant’s rights can be otherwise protected. Applying this standard, Simpson concluded that the trial court did not err in refusing to permit the defendant to call the district court judge as a witness as the defendant failed to show that the judge was the only person who could testify about the defendant’s behavior at the initial appearance. The court explained that “[t]here were undoubtedly other persons present in the courtroom . . . who may have noticed his behavior, including the deputy clerk, the bailiffs, and other attorneys not involved in the case.” Id. at 373.

What’s the answer?  It is not clear whether magistrates can be compelled to testify in these cases. The testimony sought from magistrates frequently crosses the barrier between fact testimony and testimony about the magistrate’s mental processes. Given that magistrates are judicial officials, perhaps this line of questioning is barred by judicial privilege. On the other hand, there is seldom much of a record about what transpired at the initial appearance. If the magistrate imposed an impaired driving hold, he should have completed a form AOC-CR-270 and have made findings, but the robustness of those findings varies. Moreover, in most circumstances, there is no source for the information other than the magistrate as the law enforcement officer who accompanied the defendant to the initial appearance may not have noted or may not recall the details of what transpired.

You tell me. What’s going on in your district?  Have you seen motions to quash?  How are they resolved?

1 thought on “May Magistrates Be Compelled to Testify about Their Decision-Making Processes?”

  1. Defense attorneys in my district used to make a lot of Knoll arguments for pretrial release violations in DWI cases, but when the magistrates finally started following NC GS 15A-534.2 and 20-38.4, the arguments stopped from what I noticed. It took a while from my recollection after the enactment of NC GS 20-38.4 for magistrates to start following it, but years later they finally caught on.


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