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Criminal conviction is reversed because trial judge departed from position of neutrality through comments to witness.  [Added 1/17/10]

    Witness was deposed in connection with a criminal matter.  At trial, the State called Witness to bolster its identification evidence.  Witness started to testify that she did not remember the details of what had happened.  At that point, the trial court sua sponte sent the jury out and asked some questions of the witness, pointing out that she had testified at the deposition.  Defense counsel objected.  Ultimately Witness testified in accordance with her deposition testimony. "[F]rom a strategic perspective" her testimony "benefited the prosecution."  The defendant was convicted and appealed.

    The Second DCA reversed, concluding that the trial judge had departed from a position of judicial neutrality.  "By intentionally ignoring the opportunities that would have operated to brake its inquiry, the trial court was able to 'make sure that this [was] the right witness that ha[d] given a deposition.'  However, that duty rested with respective trial counsel, not with the trial court.  The latter's force of inquiry was an improper entry into the fray."  The trial court's conduct was improper because it "suggested to the witness that her testimony should be identical to that of the pretrial deposition, in which she named [the defendant] as the offender."  Seago v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D08-4623).

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