Many years ago I co-authored a handbook for public defenders and dealt with the issue of whether it is appropriate to cry in closing argument. There was no law on the issue in Minnesota at the time but there was a Supreme Court decision from another state holding it is not per se objectionable to cry in a closing argument…it “depends upon the facts and circumstances of the case.”
Many years later I presided over a case where plaintiff’s counsel started to cry during closing argument and before I could do anything she turned to her co-counsel and said she couldn’t continue. But before he could take over I ordered him to sit down and for the crying counsel to continue. In my judgement, the crying was staged. How else would he know what to say next? There was a plaintiff’s verdict and of course a motion for a new trial based upon the crying inflaming the passions of the jury. But armed with the knowledge of my public defender handbook I ruled that crying in Minnesota was not per se objectionable in closing argument…it “depends upon the facts and circumstances of the case.” Moreover, since I believed the crying was staged, it likely backfired.
So now what about judges crying? Generally, you should not do it but “it depends upon the facts and circumstances of the case” (at least in Canada).
In R. v. Carlson, 2018 BCPC 209 (CanLII), August 17, 2018, the accused pleaded guilty to the offence of sexual interference. Before sentence was imposed, a victim impact statement was filed with the court. After the statement was filed, counsel for the accused asked the sentencing judge to recuse herself on the grounds the sentencing judge was “crying” during the victim impact statement”.
The application was denied. The sentencing judge held (at paragraph 24):
On the issue of the Court’s empathetic response to the victim impact statement, this was perhaps overstated and sensationalized. The Supreme Court of Canada and the Canadian Judicial Council, Commentaries on Judicial Conduct both agree that judges are human, they are not expected to be robots. There is therefore nothing wrong with the Court showing emotion. Just because a judge demonstrates human compassion, it does not amount to judicial bias.