## Facts

- Robert Lee Karnes was prosecuted under 18 U.S.C. § 2313 for concealing a stolen motor vehicle moving in interstate commerce, knowing it was stolen.
- Karnes’s first jury trial ended in a mistrial when the jury could not reach a verdict.
- At the second trial, the government represented it would not call Karnes’s co-defendant, Fred Cassity, or Cassity’s wife because they had made conflicting statements and withheld information and the government could not vouch for their candor.
- Over defense objection, the district court called both Cassitys as court witnesses and permitted both sides to cross-examine them.
- The judge also questioned Fred Cassity to elicit identification of another witness tied to a key link in the prosecution’s proof.
- The court gave the jury no explanation for calling the Cassitys as court witnesses.
- The district court also allowed the jury to hear transcribed testimony from the first trial from a witness absent at the second trial.
- The jury convicted Karnes of concealment under § 2313, and Karnes appealed.

## Issues

1. Whether the district court abused its discretion and compromised judicial neutrality by calling, as court witnesses, the two witnesses the government conceded were essential to its case after the government declined to call them.
2. Whether reading into evidence prior transcribed testimony from a first trial witness absent at the retrial was permissible under the requirements governing unavailability and former testimony.
3. Whether informing the jury that the government dismissed a count against a co-defendant was reversible error.
4. Whether guilty on concealment but not guilty on transportation of a stolen vehicle in interstate commerce was an impermissibly inconsistent verdict requiring reversal.

## Decision

- The Fourth Circuit reversed the conviction and remanded for a new trial.
- The court held that the district court committed reversible error in calling and using the Cassitys as court witnesses in the manner employed.
- The court found no merit in Karnes’s remaining claims, though it briefly cautioned that prior testimony may be used only after a good-faith effort to secure the witness’s presence.

## Legal Principles

- A trial judge has discretion to call witnesses as court witnesses, but in a criminal case that discretion is limited by the duty to remain neutral and not supply the prosecution’s essential proof.
- It is improper for the court to call as court witnesses persons whose testimony is indispensable to the government’s case when the government has declined to present them because it cannot vouch for their credibility.
- Calling key witnesses as court witnesses, coupled with judicial questioning and no limiting explanation to the jury, can unfairly bolster witness credibility and create the appearance that the court aligns with the prosecution.
- Former testimony from an absent witness may be presented only if the witness is unavailable despite a good-faith effort to obtain the witness’s presence.

## Conclusion

The Fourth Circuit ordered a new trial because the district court’s use of court witnesses effectively supplied indispensable prosecution evidence and risked conveying judicial endorsement, impairing the appearance and reality of an impartial trial.


United States v. Karnes, 531 F.2d 214 (4th Cir. 1976)