The court may pose any questions, in a fair and impartial manner, that help "elicit the truth" or "clarify[ ] any ambiguities" in the testimony. People v. Johnson, 327 Ill.App.3d 203, 205 (2001). The court does not take on an improper adversarial role just because its questioning elicits evidence that is material to the prosecution's case.
A determination made by the fact finder based upon facts not introduced at trial, including private investigation, or private knowledge untested by cross-examination or any of the rules of evidence, constitutes a denial of due process of law. People v. Johnson, 327 Ill. App. 3d 203, 206 (2001). When reviewing a bench trial, we presume the trial court considered only admissible evidence and disregarded inadmissible evidence in reaching its conclusion.
The propriety of judicial examination is determined by the circumstances in each case and remains in the discretion of the trial court. People v. Johnson, 327 Ill. App. 3d 203, 205 (2001). A trial judge crosses "the line of judicial propriety" when he or she takes on the role of prosecutor.
A trial court's mere reference to incompetent evidence is not sufficient to warrant reversal. People v. Johnson, 327 Ill. App. 3d 203, 211, 762 N.E.2d 615 (2001). In addition, when incompetent evidence is introduced in a case, the error is harmless where there is sufficient testimonial evidence of defendant's guilt.
That presumption "is rebutted only when it affirmatively appears that: (1) the court considered inadmissible evidence; and (2) that the court was misled or improperly influenced thereby." People v. Johnson, 327 Ill.App.3d 203, 210, 762 N.E.2d 615, 622 (2001); accord Peoplev. Howery, 178 Ill.2d 1, 32, 687 N.E.2d 836, 851 (1997) ("[T]he trial court is presumed to know the law and apply it properly. However, when the record contains strong affirmative evidence to the contrary, that presumption is rebutted.")
Further, the court is presumed to have disregarded improper evidence and considered only competent evidence. See People v. Johnson, 327 Ill.App.3d 203, 210 (2001). There is no indication in the record that the court did otherwise.
Even if portions of the report would be inadmissible, that would not justify disregarding the report in its entirety. See also People v. Johnson, 327 Ill.App.3d 203, 210 (2001) (setting forth the presumption that a trial judge will consider only competent evidence). Additionally, we reiterate that the rules of evidence do not apply to postconviction proceedings.
Further, we presume in a bench trial that the court considered only competent evidence. People v. Johnson, 327 Ill. App. 3d 203, 210 (2001). That presumption "can be overcome when there is an affirmative showing in the record to the contrary."
That presumption "is rebutted only when it affirmatively appears that: (1) the court considered inadmissible evidence; and (2) that the court was misled or improperly influenced thereby." People v. Johnson , 327 Ill. App. 3d 203, 210, 261 Ill.Dec. 46, 762 N.E.2d 615, 622 (2001) ; see also People v. Tye , 141 Ill. 2d 1, 26, 152 Ill.Dec. 249, 565 N.E.2d 931, 943 (1990) ("This assumption will be overcome only if the record affirmatively demonstrates the contrary, as where it is established that the court's finding rests on a private investigation of the evidence, or on other private knowledge about the facts in the case."). "Although a judge errs in considering facts outside the record, that error is harmless when a reviewing court can safely conclude that consideration of the facts outside the record did not affect the result."
In light of the trial court's independent duty to determine a defendant's fitness to stand trial, a trial court may certainly exercise its discretion to pose questions to the defendant. See People v. Johnson, 327 Ill.App.3d 203, 205, 261 Ill.Dec. 46, 762 N.E.2d 615 (2001) (recognizing a trial court's discretion to question witnesses to clarify ambiguities and help elicit the truth). We also believe that appellate review of fitness findings would be enhanced if trial courts took a few moments to briefly state the bases for their findings regarding fitness.