Bazelon, Chief Judge, and Tamm and MacKinnon, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Appellant was convicted of rape and sentenced to fifteen years in custody under the Federal Youth Corrections Act. *fn1 At trial the defense was consent; appellant did not dispute that he had intercourse with the prosecutrix. On this appeal, his principal contentions are that the instructions to the jury on corroboration did not sufficiently focus on consent as the one element of the offense actually in dispute, and were therefore confusing; and that the trial court's evident belief in appellant's guilt was improperly communicated to the jury. We affirm. *fn2 I.
The jury was instructed, in substance, that a conviction of rape may not be had upon the uncorroborated testimony of the prosecuting witness. The trial court then went on to list eight factors which, it told the jury, "you may or may not consider" to corroborate the prosecutrix's story. *fn3 At trial, appellant's counsel objected to the instruction because "in a case where the defense is consent, I don't think the corroboration charge is necessary, and it is only confusing to the jury." *fn4 On appeal, this contention is refined: appellant argues that although the instruction was proper insofar as it required the jury to find corroboration of the prosecutrix's testimony that she did not consent to intercourse, it was improper and confusing insofar as it required corroboration of the admitted fact of sexual relations. In addition, the list in the instruction of those factors which the jury might consider as corroborating the prosecutrix's testimony is attacked as a one-sided summary of the evidence.
Recent cases in this court have emphasized the need, in cases involving rape and similar sexual offenses, not only that corroboration of the complaining witness's testimony exist for every element of the offense, *fn5 but also that the jury be clearly told that "it is their responsibility as jurors to determine whether evidence which they credit establishes such corroboration." *fn6 The trial judge was plainly correct in concluding that an instruction was required with respect to corroboration of the prosecutrix's testimony that she did not consent to the intercourse. *fn7 We need not decide, on the present record, whether it would have been error to refuse to give a charge more narrowly worded to focus upon the necessity for corroboration of the sole contested issue, consent. The only objection at trial was to the giving of any instruction on corroboration whatsoever. The instruction actually given, we believe, apprised the jury of the need for them to find corroboration of the prosecutrix's claim of non-consent. *fn8 That they might have been improved is not, we believe, sufficient reason for us to reverse when the suggestion for improvement was not made at trial. *fn9
Nor do we believe that the instruction on corroboration amounted to a one-sided summary of the evidence. Of course it would be improper, in the course of an instruction on credibility, to advert only to matters in evidence supporting the credibility of a witness while ignoring such evidence as might point the other way. *fn10 But although the requirement of corroboration derives from distrust of accusations of sexual misconduct, *fn11 corroboration and credibility are distinct. *fn12 That there may be evidence contradicting the prosecutrix's story is relevant to the latter issue but not to the former. *fn13 Accordingly, we do not think it was error to list, in an instruction on corroboration, only those matters in evidence that could have been used to corroborate the prosecutrix's story. II.
Appellant's final argument is that the trial court's participation in the proceedings was such as to indicate wrongfully to the jury his belief in appellant's guilt. Our examination of the entire record has convinced us that many of the instances relied upon by appellant to support his claim show nothing more than that the trial court ran a taut courtroom. *fn14 Nevertheless, several matters require further elucidation.
The court took a particularly active part in the examination of three witnesses. Much of the direct examination of the medical examiner was in fact carried out by the court. When appellant called a witness to testify to prosecutrix's bad reputation for chastity, and, specifically, to a conversation three years previously in which she had indicated a willingness to have intercourse with appellant, the court interrupted direct examination to elicit the names and ages of those persons with whom the witness had discussed the prosecutrix's reputation. *fn15 When the prosecutor had finished his cross-examination, the court examined the witness again to emphasize those factors which, it believed, *fn16 rendered the witness's testimony unreliable. Finally, the defense called a staff attorney for the Legal Aid Agency to testify with regard to an interview with the defendant that he had taken at the time of the preliminary hearing. After cross-examination by the prosecution, the court examined the witness to bring out inconsistencies between appellant's earlier story and his present one.
We have previously had occasion to note that, although a federal judge in a criminal case has the power to participate in the examination of witnesses when it is necessary to "[make] the case clear to the jurors," *fn17 this power should be sparingly exercised. *fn18 Particularly when the questioning is designed to elicit answers favorable to the prosecution, "it is far better for the trial judge to err on the side of abstention from intervention in the case." *fn19 If more than one or two questions are involved, the proper procedure is "to call both counsel to the bench, or in chambers and suggest what [the judge] wants done. That the judge may be able to examine witnesses more skillfully or develop a point in less time than counsel requires does not ordinarily justify such participation. That is not his function." *fn20 As Judge Learned Hand once said, "Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge." *fn21
Nevertheless, we cannot find reversible error on the present record. Admittedly this is not a case in which the judge's questioning was directed solely "toward much needed clarification rather than challenges of the testimony." *fn22 But the boundaries of proper judicial interrogation may be less clearly visible while the questioning is in progress than in the brilliant glare of hindsight. We have emphasized in the past the responsibility of trial counsel to make objection, out of the hearing of the jury, if it appears to him that the trial judge's participation may endanger his client's rights. *fn23 In the present case, any prejudicial effect from the trial court's participation would have come not from any single question, but from continued participation apparently on the side of the prosecution. Accordingly, there was ample time to object before serious harm was done. With no objection made at trial, the present record does not warrant reversal.
In his motion for a new trial, and again in this court, appellant suggests that certain of the trial court's remarks during bench conferences may have come to the attention of the jury. We may assume that these remarks, some of which are set forth in the margin, *fn24 would have operated to appellant's prejudice had they been overheard. It appears, however, that no suggestion was ever made to the trial court that these comments might have come to the attention of the jury until the verdict had been returned. We recognize that counsel may be placed in an unenviable position if he must suggest to a trial judge the unwisdom of the latter's conduct. *fn25 But if an appeal is to be grounded upon the demeanor, tone, or vocal volume of the trial court, those grounds must be made to appear on the record. In the present case, had the matter been brought to the attention of the trial court prior to verdict an inquiry could have been conducted to determine whether the jury heard ...