Court Participation in Testimony Read-Back Is Error

Although the Second Department concluded it was harmless error, the Court noted that the trial court erred when it participated in reading back certain trial testimony to the jury.  The Court wrote:  “We take this opportunity to emphasize that ‘[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back’…”.  People v Facey, 2012 NY Slip Op 01568, 2012-11829, Ind No 9839/08, 2nd Dept. 3-13-13