"Judge, Don't Interrupt My Client's Testimony To Warn About Criminal Implications"

A trial court judge's actions in interrupting a litigant's testimony during cross-examination to warn him about possible criminal implications if his testimony revealed tax fraud was improper, the Appellate Division held in All Modes Transport Inc. v. Hecksteden, A-0361-05T5, December 27, 2006. Combined with this warning, the trial court suggested the parties settle the case. After this exchange by the trial judge, the defendants agreed to settle the case for a substantial sum of money. Shortly thereafter, the defendants filed a motion requesting the trial court to vacate the settlement arguing that they were coerced into the settlement by the trial judge's threat of criminal prosecution. The trial court denied defendants' motion, concluding that the settlement agreement was not procured by coercion. The trial court was of the opinion that it had a duty to warn to warn the defendant that continuation of his testimony on cross-examination could result in self-incrimination.

The defendants appealed, and the Appellate reversed the decision and remanded the matter back to the trial court for reconsideration of whether the defendants voluntarily entered into the settlement. In so ruling, the Appellate Division remarked that the proper judicial course for the trial judge to have followed would be to leave the matter of suspicion of criminality for such attention at the end of the case, including referral to the appropriate prosecuting authority. The appellate court further commented that it was the responsibility of defendant's counsel, not the trial court, to advise him about his legal rights and potential liabilities flowing from his testimony. Evaluating the impact of the trial judge's warning, the Appellate Division believed that such statements had to have exerted substantial pressure on him to settle the case in order to avoid criminal prosecution.