Party Benefitting from Erroneous Judicial Comment Bears Burden

State v. Boothby, No. 116,505 (Kan. Sept. 6, 2019).

Issue: A district judge made an erroneous comment regarding Boothby’s case in front of the jury.  Is an erroneous judicial comment made in front of a jury that is not part of the jury instruction or legal ruling analyzed under the generic judicial misconduct standard?

Answer: No.  Erroneous comments are now reviewed under judicial comment error and the state as the benefiting party of the error now has the burden to demonstrate that the comment was harmless.

Facts: Boothby was charged with aggravated burglary, aggravated assault, and criminal threat.  In the beginning of voir dire the district judge suggested Boothby had previously been charged with “aggravated battery” in a “former case.”  Boothby appealed, arguing the erroneous judicial comment should be reviewed under the Chapman constitutional harmlessness test, which shifts the burden from the party alleging the judicial error to the state, as the party who benefited from the judicial error.

Discussion: A party alleging judicial misconduct bears the burden “of establishing that misconduct occurred and that the misconduct prejudiced the party’s substantial rights.”  Judicial comments that are not jury instructions previously were analyzed under the “generic judicial misconduct standard.”  The Kansas Supreme Court clarified that “an erroneous judicial comment made in front of the jury that is not a jury instruction or legal ruling will, from now on, be reviewed as ‘judicial comment error’ under the Chapman constitutional harmlessness test.”  

Chapman shifts the burden to the state, as the party who benefits from the judicial comment to “prove beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record.”  The court moved judicial comment errors out of the umbrella of generic judicial misconduct. Thus, parties who allege judicial comment errors no longer bear the burden of proving the error prejudiced their substantial rights.

Key Authorities: 

State v. Miller, 427 P.3d 907, 936 (Kan. 2018).

State v. Ward, 256 P.3d 801, 820 (Kan. 2011).

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