-: SJC 13068.
In the matter of impounded case.
-: Attorney Borenstein,
good morning. -: Good morning.
-: Good morning Chief Justice Budd,
Honorable Justices of the Supreme Judicial Court.
My name is Devorah Vester Borenstein,
and I represent Pierre the appellant
who is attending the session virtually.
So the trial judge's ruling on Pierre's objection
to Dr. Fishman's hearsay testimony
regarding his past residence
illustrates exactly why minors due process holdings
regarding least restrictive alternative
and factual findings applied to civil commitments
under sections seven and eight,
and are necessary to ensure due process.
This is what the trial judge said.
"Here's what I'm going to do.
I'm going to allow the testimony.
You can cross on it and obviously argue
whether or not it is reliable enough when it comes
to no less restrictive means.
But I think I need the information"
Justice Gaziano: Ms. Borenstein excuse me,
do we have any case law that informs us what we
should do when the trial judge asks for the information?
Because as you well know, from Jaime
and DYS versus a Juvenile.
In some of our later cases,
is it's admissible on cross examination, correct?
That's what we've traditionally said, but I don't know
if we've ever confronted the issue
when the finder of fact,
here the trial judge is the one who raises the issue.
How does that play into it?
-: Yes, Your Honor.
So I, my brother did cite in his brief,
the case Commonwealth versus Lucien
which says that the judge
can ask questions.
However, the judge cannot act partisan in nature.
And if the judge asks questions on direct
that require that the expert reveal the factual
underpinnings of her opinion,
I would say that that is indeed partisan
because that is not permitted on direct.
So what the petitioner can not do,
I would submit to this court
the judge can't do on direct either because that undermines-
-: The judge is the one that's responsible for fact-finding.
I mean, I haven't been a trial judge
and have new motion suppressing the light.
It's a quite different scenario than when you are the,
when jury decides facts and you'll leave it to the lawyers.
And again, I know that Mr. Kim cited the case that say
judges can ask questions.
But how is it the judge being a partisan?
It's kind of a strong accusation.
-: Well, the reason why I mentioned that is because
if the
hospital can't ask
the expert on direct
for the factual basis of her opinion,
I submit that the judge can't do that either.
The judge can ask questions to clarify.
And the judge in this case did ask for the,
not the basis, but what the source
of Dr. Fishman's information was.
And that did not undermine Pierre's right to,
on cross.
Ask whatever questions he would want to ask
-: Thank you Ms. Borenstein you've answered my question.
Thank you.
-: Thank you.
So the judge wanted information and this leads me-
-: Excuse me.
Can I, I just want to ask a follow up
to Justice Gaziano's question.
What about the statement in Department of Youth Services
which says, it is within the court's discretion to
require an initial disclosure of underlying facts or data.
Is that initial disclosure, is that referencing on directly?
What does that mean?
That statement in Department of Youth Services.
-: Your Honor, it's my recollection that part from DYS
to the juvenile refers to the proposed rule under 705.
I don't believe that it is possible for
the judge to ask on direct for the factual underpinnings
of the expert's opinion.
So I do think there is, there's a difference.
-: I'm going to help you out with that answer
and then ask you a follow-up question.
That's when the judges, the judge of the law
and making sure there's a basis
for the expert's opinion away
from the trier of fact,
in response to Justice Kafker's question.
But isn't the problem here,
that the judge
as the trier of fact is hearing the basis
for the opinion that is based on evidence.
It's not admissible.
It might be independently misfulfill
the right source, but it's not admissible.
And so the judge is the trier of fact,
is taking that evidence
not to understand the basis for the opinion,
but to build into
whether or not there's sufficient evidence.
-: I don't agree.
-: Well you should because I think (indistinct)
(Justice Kafker laughs)
-: I'm sorry.
In this case,
the trial judge
asked for after
Dr. Fishman
testified to the inadmissible hearsay.
The trial judge asked where she got that.
-: Right. And that's the problem because the judge
is hearing
what he,
as the trier of fact, can't hear
which is the basis for the opinion actually, substantively.
-: Well that, yes he already heard the basis.
It was only a little while later
when he asked
what the source of the information was.
But he had already heard
the inadmissible hearsay testimony
that was allegedly based on something in
the record, which the hospital
hadn't even introduced.
So that already got out.
It was only later that he asked about the source, who,
where did this come from?
And Dr. Fishman explained,
it came from our social worker
who she believes was in contact with the prior treater.
We don't know if, again, we don't need to go
to a Bucci or a Doyle analysis
because the record wasn't introduced.
So all of that doesn't come in and-
-: That's the problem.
Cause he's the judge of the facts.
And the judge of the law there.
-: Correct everything that flowed
from that initial hearsay testimony.
And so, the reason why this is all important is
because if we look at Nassar and minor,
while they may come to the same conclusion,
they give different guidance.
And that's really critical here
In Nassar, this court has interpreted
the language of Nassar to mean
that a court cannot commit a person before finding
that no less restrictive alternative is appropriate.
However, Nassar doesn't define appropriate, minor does.
And minor says to be appropriate,
the less restrictive alternative need not
eliminate all risks.
It just needs to bring the risk of harm below the statutory
threshold that is defined in section one of the statute.
-: I'm confused by that.
So we have a very high standard
of proof here beyond a reasonable doubt, right?
We have the rules of evidence supplier.
We wouldn't be struggling with some of these other issues.
In criminal trials, we convict all the time
without a specific fact findings.
So why are we going to impose specific fact-finding here?
When we have a beyond a reasonable doubt, the standard
we have the rules of evidence,
we have appointed counsel,
we have all these due process protections here.
-: I would say Justice Kafker that
the burden of proof in this case
is not dispositive in the analysis.
And that's because the burden of proof
is the quantum of evidence.
It regards the degree of confidence
that the fact-finder should have in the correctness
of the factual conclusions.
And that's different from findings because findings are
the evidence that the trial court credits
regarding the ultimate legal conclusion and on review,
even if we have a high burden of proof, that's not going to
protect against erroneous findings or an erroneous
application of the law to the facts.
And indeed-
-: Could I interrupt you on that point?
-: Yes.
-: In a lot of times, these hearings
when the presiding judge goes to render their conclusions,
they'll say something like,
that they credit the doctor's testimony
that testified at the hearing.
And if that's in the record, why doesn't that suffice?
-: It doesn't suffice
if the court
is not making
factual findings
on each material element.
Because we have three material elements here.
We have the mental health, the mental illness,
we have the likelihood of serious harm,
and we have no less restrictive alternative
which by the way is also built
into prong three
as you know, and-
-: Sure, but the way these hearings go,
the petitioner, the facility is represented by counsel.
They qualify the doctor
in a lot of times.
There's a stipulation as to the underlying mental condition.
And then we move on to the, whether it's prong one
two or three.
And all of these basis that the hospital needs
to cover to sustain their burden.
They elicit that testimony, not only about the
underlying mental condition, but whether or not
they've resatisfied prongs one, two or three,
and then moving on to whether or not
there's no less restrictive.
No less restrictive means to accomplish these things.
And if the doctor testifies to all of that
and at the end of all of that, when the evidence closed
I'm just wondering why isn't
that enough to satisfy the fact finding to say
I credit what the doctor has testified to.
-: Because Your Honor, the doctor,
we need more minor instructs us
that we need more than just an expert opinion.
We need facts.
We need actual facts so that the trial court
can meaningfully consider all less restrictive alternatives.
And this court
did say in minor,
that
that we need these factual findings
because these cases are so intensely facts specific.
And there's no way to ensure that commitment
is the least restrictive means of vindicating
that the government's interest-
-: That was written in context of section 35
which is a much more in formal proceeding.
Isn't this really a sufficiency of evidence issue?
Because of the facts are there,
these are subject to review.
And that in fact happened
by the appellate division of the BMC in this case.
I mean, to give you an example in Cincinnati,
when we talked about
the necessity for joint venture versus principal liability,
this court said, well, we're going to review the record
and if it's there to there,
that's a murder conviction.
So it doesn't that aren't all those protections afforded
to you when we have a sufficiency review after the hearing.
-: No, Your Honor.
And this is the reason why, first of all
seven and eight commitment hearings are not
like criminal trials or criminal bench trials.
Why? Because the goals and the evidence are different.
In a criminal trial, we are looking backwards.
The fact-finder is looking to see
whether a person committed a crime
in the past based on specifically pled elements
whereby in a civil commitment
that the fact-finder is looking ahead.
It's a prospective assessment of future risk.
The trial court judge has to determine
whether this person is going to behave
in a certain way in the future, in the imminent future.
And so he has to consider a lot
of fact intensive factors
that are fluid.
And he also has to determine
whether or not there's a least restrictive alternative
which we don't have in a criminal trial.
And what's important to note is
that when we have a sufficiency case
in the commitment arena,
if we don't have findings of fact, then on review
the reviewing court is really creating a legal fiction
because if we don't know what the trial court-
-: I think the part of the fact,
you use Justice Georges' hypothetical.
He paused it when the judge says
I credit what the expert had to say, right?
Cause I understand your point
if there's conflict in testimony,
then who knows, right? On review?
But here, the hypothetical polls solute
by Justice Georges was, the trial judge credits the expert
from the hospital.
-: Your Honor, that happens very rarely, to be honest.
In most of our cases, if not all of our cases,
we don't have that on the record.
We don't have the trial court saying I credit X, Y, and Z.
What we're left with is just literally a kitchen sink
of facts on review.
And indeed, the appellate division in this case,
if you look at the record appendix on page 19,
it credited, it said that the court, the trial
court credited Dr. Fishman's testimony and her opinion,
that Pierre would pose a very substantial risk of harm
due to mental illness because he needed supervision
due to his psychotic delusions, et cetera.
There's, that doesn't appear in the record.
We don't know what the trial court credited when it can-
-: Could I, before we lose you,
I don't know if you had a chance
to read the Amicus from Attorney Shiavoni,
but I'm sure you did.
To summarize, it basically said
this is going to be a disaster
if judges have to make these type of findings.
And he listed out all the reasons, and then he pointed out
that an R and L case with the continuances that it's done,
it's he suggested done some unintended arm to patients,
to managing,
facilities and then here
with the bifurcated hearing that
and the judges have to get back to first session that
he was basically saying your position is
going to be a real-world disaster.
Any response to that?
-: Yes, we will not be a real world disaster.
First of all, the judge has the option
under minor to make the findings orally.
Secondly, if the judge decides to make written findings,
there's nothing preventing the judge
from entering commitment order
and then issuing those written findings some days later.
The court has 10 days under the statute to
even issue that commitment order
but the judge can bifurcate it.
The judge can commit the person, but then later on issue
the written findings and courts do that all the time.
They do that in termination cases,
they have up until 90 days to issue written findings
after they've issued the termination judgment.
So this is not going to cause havoc.
In fact it would be good for everybody.
-: Didn't the Amicus argue
because there's a two-step process,
the commitment and then the treatment.
That this is going to hold up
the ability to deal with the treatment.
-: Oh, I'm sorry.
Justice Kafker: No, go ahead.
So what's your response to that?
-: My response to that Justice Kafker is
that it will not cause havoc with regard to 8B.
It won't cause havoc because as I just said,
the judge after the commitment hearing,
if he finds that all of the material elements
have been met beyond a reasonable doubt,
he can issue the commitment order.
And that's the only requirement to hold an 8B hearing.
-: Do that in condition that commitment order
without the fact-finding you're talking about
or with the fact-finding you're talking about?
-: Well, under minor the judge has an option.
The judge can make findings orally, which would then
be right after he issues the order
or if the court decides that it wants to wait
with the findings, because it wants to issue
written findings.
There's nothing stopping the judge from issuing
the commitment order.
And then afterwards, the AP can proceed and-
-: So that they can start the treatment
even though the fact findings haven't been made?
They can start the treatment
without the fact findings that they're able to proceed
with treatment or cause the Amicus argues they can't.
-: I would argue the opposite.
The statute says that an 8B
that the court cannot commence a hearing on an AP petition
unless there's a commitment order.
It doesn't speak about findings.
Findings are separate and the findings-
-: So are you saying you can't have one
without the other isn't that the whole thrust
of your argument?
That you need the findings to
make the commitment order with gentlemen?
-: Correct.
But minor gives the trial court
the option of stating orally,
what it has found,
what is subsidiary facts are that support the
ultimate legal conclusions, or to put those findings
in writing and in the section 35,
I would argue that because it's so fast paced
and the person is then,
if the person's committed and is taken
to the treatment center.
If the judge opts in that case to
issue written findings, I would say there's not a lot
of time for the judge to do that.
So the judge issues the order, the person is sent
to the treatment center.
And afterwards the judge issues finding,
I would say in a reasonable amount of time,
but I don't think there's anything in the law,
in this decision, that would preclude a trial court
from bifurcating that if it shows
to issue the written findings.
-: But Attorney Borenstein,
let me just ask you one final question before
you're done.
Do you agree that as Justice Georges' posed,
if in fact going forward?
A judge were to say
I credit the expert's testimony.
Would take care of this?
-: No, I don't agree.
I don't think it's enough.
I would say-
-: If the testimony is there on the record and it has all
of the elements necessary, why wouldn't that be enough?
-: It wouldn't be enough if the expert just testified
to her opinion and opinion is not fact and opinion goes
to the ultimate legal conclusion.
And the trial court
especially with regard to least restrictive alternative,
needs to know what if the ultimate
conclusion is no less restrictive alternative.
That trial court judge needs to know what was done.
It's important to know how a hospital got there
because otherwise there is no way to even apply
a burden of proof to the ultimate conclusion. No less-
-: But that doesn't go to the findings, does it?
That doesn't really go to the judge's findings of fact
about why, you know, why the order is
as the judge says it should be.
-: I guess I'm not under-
-: I guess all I'm saying is I can imagine that going forward
a judge would have the option of doing written findings
or saying I credit the expert's testimony
based on that testimony.
You know, here's my order and here's, why not?
Justice Georges: Chief may I ask one follow-up question?
-: If it's going to clarify mine, yeah.
-: Counsel, with respect to the chief's question.
We're also presuming that the only witness testifying
at these hearings is the treating physician.
There's also plenty of times where
there were family members that come in
that testify to the history of mental illness,
some of the perhaps violent outbursts that
led to usually some of these things come in to a section 12
and then there's a referral to the psychiatric units.
There were other witnesses that testified these
hearings all the time, that testified to
the likelihood of imminent harm and
whether or not they could return to the community,
whether they could come back to the home
or to the facility where they were living.
They come in all the time
and I'm just again, wondering why, if the judge were to say
I heard this testimony and I credit the social worker,
I credit the mother, I credit the doctor.
That's testifying that all of these bases are covered.
Why isn't that enough?
-: It would be enough Your Honor
if the testimony was factual
so that the reviewing court knew exactly what the subsidiary
facts were that supported the ultimate conclusions.
In that case, it would be fine.
It would be clear what we want is transparency.
That's the goal.
This is the fact finding's requirement is not
just for respondent.
It's really for everybody, it's for the hospital,
it's for the reviewing court especially because
how can you review for error
if you don't have the factual findings?
And also how can you review for sufficiency if you are,
if you defer to the trial court for the,
on the findings, but you scrutinize without deference
with regard to the legal criteria the court applied.
How do you know what to apply it to?
In this case, we have a perfect example
because the appellate division assumed
that the trial court found harm because it credited
Dr. Fishman's testimony regarding delusions
and poor judgment and et cetera,
which by the way, don't make out harm.
They just go to the mental illness and Pierre's baseline.
But apart from that, how can reviewing court be effective
and accurate in its review where it's basically
creating a legal fiction out of a kitchen sink effects.
That's all I'm saying is that,
the reviewing court really needs to have these facts.
And because these cases are so fact intensive and
depend on it, an accurate assessment of whether
or not a person in the near future,
days or weeks is going to be a likelihood
of serious harm as a result of a mental illness.
We need the facts and they help everybody.
-: Okay. Thank you so much.
-: [Attorney Borenstein] Thank you, Your Honor.
-: Attorney Kim.
-: Good morning, may I please the court.
Assistant Attorney General David Kim
on behalf of the appellee.
This is an appeal of the section seven, eight proceeding
where the department showed at the trial court
the following facts, and these were not just
conclusory opinions by an expert, but specific facts
that the patient had paranoid schizophrenia.
He suffered major delusions because of that schizophrenia.
And those delusions led to incredibly dangerous behaviors
such as refusing medication
and at one point increasing the intake of the oxygen
for his COPD treatment to potentially lethal levels.
Moreover-
-: But why shouldn't we treat section eight
commitment similar to the way
we treat section 35 under minor.
-: So this court has
for many years treated section 35 and section seven
and eight very differently for constitutional purposes.
The primary reason as stated
in GP seems to be the length of the detention involved.
And so in section 35 cases, hearsay evidence is admissible
and a...
...lot of the petitioners are pro se.
And so these are much more informal proceedings
and they require a different set of due process protections.
And that was really the animating concern of minor.
How do we know that the evidence
that the judge relied upon was reliable?
Well, let's get courts to put down on the record
which evidence they found reliable so
that we can actually review.
In section seven and eight proceedings,
the rules of evidence apply.
And so there is this baseline presumption
that all the evidence being considered
by the judge is at a minimum relevant and competent.
That concern doesn't really exist.
Section seven and eight proceedings have really
been treated more like criminal bench trials historically.
And so, in that context as Justice Gaziano pointed out,
even when you have life without parole at stake,
where you have alternative theories
for liability on a murder charge.
These findings are not required where it's a bench trial.
So in this context
what we have is a record that honestly is not very much.
-: Counsel can I ask you to address
opposing counsel's argument
that the salient difference between a criminal trial
and the civil commitment,
is that the civil commitment is forward-looking
whereas the criminal trial is deciding things that happened
in the past.
Why isn't that the differentiating criteria
between how we treat civil commitments
versus criminal trials?
-: Well, I'm not aware of a case
that particular difference makes a difference
in terms of the due process protections at stake.
The question really is,
is the evidence reliable enough
and the standard of proof high enough to ensure
that we are making the correct determination
when detaining a person for a lengthy period of time.
-: And what is the case that says that?
-: So Harper sets out the beyond a reasonable doubt standard
for seven and eight cases.
Actually all cases involving mental illness.
And that's an actually higher standard of proof
than what's required by federal law
which is clear and convincing evidence.
And Nassar,
sets out the requirement that there's no less
restrictive alternative to civil commitment,
involuntary commitment in these kinds of cases.
And so,
by the way that protection was not there
until minor for section 35 cases.
Which was just another sign that again
these two kinds of proceedings were treated very differently
for due process purposes.
-: Every we said in the past, I mean, before minor
we'd said in the past that seven and eight proceedings
without fact findings satisfied due process, right?
I mean, we've said it's seven
and eight in the past satisfies due process.
The only issue is whether the statement we said in 30-
in minor about 35 requires us to change our mind
about whether seven and eight
meet due process without specific findings, right?
-: That's true, Your Honor.
And not only that a couple of years ago, in the MC case
this court decided that an incomplete transcript
in a civil commitment proceeding was a sufficient record
for appellate review.
And that case, the incomplete transcript was because
of technical issues with the recording equipment.
And so,
if that's enough for a reviewing court
to decide what the factual issues were at play.
Then it should go without saying that
here we have a complete transcript.
The only question is what evidence was relied upon,
but again we have a complete record,
so that should be more than enough
for under our law for viewing court to decide
whether this is a constitutionally sound decision.
-: Could you address the evidentiary issue
particularly the judge, the judge sort of getting
into the fact, the underlying factual issues
on direct as opposed to wedding this play out across?
-: Yes. So I start off by saying that,
at worst this was harmless error.
The evidence at the hearing was actually that
this individual was not safe, even in an assisted
living facility.
He still suffered from the delusions that led
to him increasing his oxygen intake, which happened
at an assisted living facility.
So clearly even under that situation,
he was posing a risk of harm himself.
And so-
Justice Lowy: That wasn't mental,
related to mental illness though.
-: I don't really understand the question.
-: Were you saying that the substantial harm
because of the medical issue.
Attorney Kim: Oh, yes.
But the harm was related to his delusions
about what kind of treatment he needed for his COPD.
And those delusions were stemming
from his paranoid schizophrenia viewpoint and-
-: Attorney Kim in this particular case,
do you remember what prong the facility was moving under?
I didn't catch that in the record
but was it all three or is it any one particular?
Attorney Kim: So in the,
the record is a bit mixed on this,
in the initial petition it does seem to be harm,
potential harm to others, but by the time we get
to the commitment proceeding, the theory is very
much that he cannot protect themselves in the
community so prong free.
-: There were different standards in those
three prongs, right?
Attorney Kim: Correct, yes.
-: Does that at all factor into this decision here?
-: It matters in so far as
the question for prong three is
whether the patient has the ability to protect themselves
in the community.
So that's very much a central question even before getting
to a less restrictive alternative.
Justice Georges: Mm-hmm.
-: That's a central question.
And so to get to that question,
the court here sort of intervened in the direct examination
and started soliciting answers out of this expert findings.
But again, ultimately the record is pretty clear that
whether this facility was available or not,
was neither here nor there,
because this person would have posed a threat
to themselves that at that facility anyway.
But if we do reach the legal question
about whether this was an abuse of discretion,
first of all this evidence was independently admissible.
The Chappell case defines independently admissible as
you know, it would be admissible
but for the correct witness or foundation.
So here the correct witness would have been
the individual at that other facility who said
we don't have any more beds,
we don't have any more spots.
We could have brought that person in.
The facility could have laid the foundation
to introduce the medical records
which were admissible under the statutory medical records.
-: I'm not sure that's really contested, that's true.
I think the concern is that
for substantively, that it went into the mix.
-: Well-
-: That it was a factor as to I think the third prong.
-: Right. So it wasn't a backdoor
in the sense that our evidentiary law worries about that.
The backdoor that people are worried,
that the courts have been worried about
when setting down this rule is that
the proponent of the evidence would introduce
and admissible evidence
or evidence that's not been properly founded
into the record.
That's not what happened here.
It's not the proponent of the evidence doing it.
It's the court at various points saying,
counsel ask your witness this specific question
or in a couple of cases
the court directly asking the witness the question.
And so in those instances,
you know, whether this was the best way to do it or not,
the point is that our evidentiary law does not
prohibit this exact chain of events that occurred here.
And it's not, it wasn't legal error
for the court to handle the situation this way.
-: So do you want us to issue a ruling
that saying that's okay
or that it's, ill advised,
but okay,
what are, cause that's a pretty important step.
Are we going to allowed judges to do that or not?
-: Well,
so again I think at a minimum
the court doesn't even need to wait
into this evidentiary question
because I think it was harmless error.
But we're-
-: I get that, but I guess,
Justice Gaziano's initial question,
do we have any case on this?
It sounds like we don't
-: On this specific?
Yeah, not on this specific question
of whether a court can do this or not.
The case law that exists is
about direct versus cross examination.
-: But isn't it a big deal
if the judge is doing it as the trier of fact?
-: Well, section 614, an elusion case,
the Massachusetts guides to evidence states
that a trier of fact, the judge is allowed to
ask these questions so long as they are not partisan.
And in this case, the question was not partisan.
It was just to get these facts on the record.
The judge didn't have any knowledge beforehand
whether the evidence was favorable
to one party or the other.
It vary well could have been favorable to the patient.
And so-
-: By the way isn't it limit?
I understand that we liked this played out on cross
but this seems artificial don't, isn't it right
for the judge to want to know what the basis
of that statement is?
I'm just not sure Judge Tynes' made any error
in asking that.
I mean, it seems a good question.
So that's what troubles me
that we seem to be saying that it's inappropriate
but it's something that judge
is going to want to know, right?
-: I agree, Your Honor, it's an essential element
of section seven and eight civil commitments.
And I think there's a bit
of an irony that the appellant is
asking for this constitutional basis
for a court going into this inquiry about
whether there was a less restrictive alternative or not.
And the trial court did that here.
The trial court went into that inquiry
but now that's considered error.
-: They don't mind it.
There's evidence to support it if it is.
They just want it to be based on competent evidence.
I don't think their positions unreasonable.
It's just that they're are concerned
that the basis for the opinion,
which can be utilized
if it would be independently admissible
shouldn't be baked into the cake as to the sufficiency.
So I don't think their positions inconsistent.
-: I would also say that, you know, it's not-
-: Isn't it related to whether, you know
the expert's credibility in general?
Your the thought process of the expert here.
I mean, you know, I get that
there may be some kind of,
I mean we've sort of backed ourselves into
a corner with this.
The rule we've got on allowing this only into cross
but I don't know if it makes any sense
to not be able to ask this question.
-: Yeah, I agree with the basic contention that
as a general rule,
this evidence should only come in on cross.
And, you know, it's really up to
the discretion of the court
whether they're going to ask these questions
or not to get at the basis.
They could leave the facility out to dry and say,
you know, we're not going to get any of this evidence.
And either you find a way to get it in or, you know-
-: Well, isn't the answer to trust judges to compartmentalize
their mind and be able to differentiate between
credibility issues as the trier of fact, and as the judge
of the law, to be able to ensure that there's a basis
for an opinion.
And so that the judge is able to ask those type
of questions.
And we just trust trial judges to be able to
differentiate between the two roles.
-: Yeah. I agree with that, Your Honor, there should be
this presumption that when trial courts wade
into this territory, that they're able to compartmentalize
between different elements, different kinds
of questions between substantive evidence
or the credibility of witnesses.
And there's no indication on this record
that the trial court mangled any of those distinctions.
The only thing that trial court teach here was again
intervene during a direct examination
and get this evidence on to the record.
-: Okay. Does anyone have any further questions?
Thank you so much.
Attorney Kim: Thank you.