dissenting.
I respectfully dissent because I do not believe that the trial court’s questioning of the witness violated OCGA § 17-8-57. Moreover, even if it had, the violation fell far short of being “plain error.”
1. Occasional and cautious questioning of witnesses by the trial judge has been a part of Georgia trial practice for almost 150 years.30 It has proved to be a useful device for reaching the truth. As explained by our Supreme Court, “It is a court’s right, and oftentimes its duty, to question a witness in order to develop fully the truth of a case.”31 *417For a court to do its duty, it must be given some leeway in questioning, especially when there is no objection or motion for a mistrial.
The court’s leeway is constrained by its duty to remain neutral between the parties. Questions should be asked sparingly and as neutrally and dispassionately as possible.32 Moreover, as explained in our early decision in Nobles v. State,33 “[ejxtreme anxiety to develop the truth as to facts which, if proved, will be peculiarly beneficial to one of the parties in the case and correspondingly detrimental to the other[,] can easily be mistaken by the jury for a manifestation of the judge’s conviction that one party rather than the other should prevail.”34
The court’s leeway in criminal trials is also limited by statute. OCGA § 17-8-57 provides that:
It is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below.35
The majority opinion argues that the trial judge violated the statute by improperly bolstering the testimony of the victims when she elicited favorable testimony about them from the assistant principal.
Atrial judge’s intervening in a trial to bolster the testimony of the witnesses for one side might be a lapse from neutrality. But not every lapse from neutrality is a violation of OCGA § 17-8-57. The statute is narrowly drafted. It prohibits a trial judge from doing any one of four things:
(a) expressing his opinion as to what has or has not been proved;
(b) intimating his opinion as to what has or has not been proved;
(c) expressing his opinion as to the guilt of the accused; or
(d) intimating his opinion as to the guilt of the accused.
*418In the case at bar, the trial judge clearly did not do (a), (c), or (d). The appellant’s argument seems to be that the trial court, by questioning the assistant principal about the witnesses’ student activities and grade-point averages, violated (b) and intimated that the facts testified to by the students had been proved. But helping to prove facts and intimating that they have already been proven are different. The majority is breaking new ground by trying to shoehorn bolstering into a violation of OCGA § 17-8-57.
In none of the precedents cited by the majority was a conviction overturned because a trial judge elicited favorable testimony about a witness’s background or character. In Paul v. State,36 the trial judge cross-examined the defendant, the victim, several witnesses and “intimated that he gave . . . [the defendant’s psychiatric defense] no credence whatsoever.”37 In Seidenfaden v. State,38 the court did not express an opinion at all, but correctly explained the law to the jury.39 In O’Hara v. State,40 we found no violation of OCGA § 17-8-57 despite the court’s calling two witnesses, questioning them and suggesting its “approval” of one of them.41
The majority correctly asserts that the credibility and standing of the witnesses are critical issues in any trial. But the cases in which there were statutory violations involved lengthy questioning of witnesses or disparaging comments as distinguished from the limited questioning done by the trial judge in the case at bar.42 The majority opinion establishes a new rule that questions by a trial judge which elicit testimony favorable to a witness are violations of OCGA § 17-8-57. Such a rule would handicap the trial court in doing its duty to question witnesses, albeit infrequently, carefully and neutrally, “in order to develop fully the truth of a case.”43
2. Even if the court’s questioning violated the statute, the violation fell far short of being “plain error.” The plain error rule means that, in order to obtain appellate relief when no obj ection or motion for mistrial was made in the trial court, an appellant must show more than that an error occurred and that the outcome of the trial might have been different but for the error. It is not sufficient to show that *419the error affected the fairness, integrity, or public reputation of the trial. Instead it must be shown that the error “seriously affected the fairness, integrity, and public reputation [of the trial].”44
Decided July 14, 2005 William J. Mason, for appellant. J. Gray Conger, District Attorney, Robert H. Sandwich, Jr., Assistant District Attorney, for appellee.Last year in Milner v. State, we held that a violation of OCGA § 17-8-57 was not plain error even though the trial judge had asked 14 penetrating questions of the defendant on cross-examination.45 How can we now hold it to be plain error when a trial judge asks four fairly innocuous questions to a witness? The violation asserted in this case also contrasts starkly with the plain error found in Paul v. State, where the trial judge adopted a prosecutorial role throughout the trial.46
The majority is appropriately concerned that the trial judge, despite having “opened the door” to questions about the extracurricular activities, grade point averages, etc., of the victims, curtailed the efforts of defense counsel to elicit impeaching testimony. But the admission of evidence and the scope of cross-examination are largely within the discretion of the trial judge.47 Because defense counsel was allowed to ask four questions, questions which inferred to the jury that the two students fell short of perfection,48 the trial judge did not abuse her discretion in preventing defense counsel from exploring the matter as thoroughly as counsel wished to do.
3.1 agree with the majority that the trial court’s questions to the victim T. J. about what she could or could not see through the screen door were not violations of OCGA § 17-8-57.
I would affirm the judgment.
I am authorized to state that Presiding Judge Andrews and Presiding Judge Johnson join in this dissent.
The leading case is Kelly v. State, 19 Ga. 425 (1856) (Lumpkin, J.). Accord Eubanks v. State, 240 Ga. 544, 546-547 (2) (242 SE2d 41) (1978); Thomas v. State, 240 Ga. 393, 400 (3) (242 SE2d 1) (1977).
(Citations omitted.) Eagle v. State, 264 Ga. 1, 3 (3) (440 SE2d 2) (1994).
Questions to a defendant, when a defendant has elected to take the stand in a criminal case, require particular caution by the trial judge. See generally Milner v. State, 270 Ga. App. 80, 83 (1) (606 SE2d 91) (2004).
13 Ga. App. 710 (79 SE 861) (1913).
(Citations omitted.) Id.
OCGA§ 17-8-57.
2 72 Ga. 845, 846-848 (1) (537 SE2d 58) (2000).
Id. at 848 (1).
249 Ga. App. 314 (547 SE2d 578) (2001).
Id. at 318 (2).
241 Ga. App. 855 (528 SE2d 296) (2000).
Id. at 859 (3). In Crane v. State, 164 Ga. App. 638,640 (1) (298 SE2d 619) (1982), the trial judge in the presence of the jury “in effect dared the appellant to take a polygraph test on the central issue of his guilt or innocence.”
Jones v. State, 189 Ga. App. 232,233 (1) (375 SE2d 648) (1988); Cole v. State, 6 Ga. App. 798 (65 SE 839) (1909).
Eagle, supra.
(Emphasis supplied.) Paul, supra at 849 (3), citing Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986).
Milner, supra at 83-84 (2). And a trial judge should be especially sparing and careful with questions to a defendant in a criminal case. Id. at 83 (1).
Paul, supra.
See Mobley v. State, 212 Ga. App. 293, 295 (1) (441 SE2d 780) (1994).
E.g., “Q. Right. But sometimes polite students get in trouble. Is that correct? A. Minor trouble, maybe so.”