When will a trial judge decline to hear evidence in a sexual assault case?

Counsel has responsibility for conducting the appellant’s case, not the trial judge. It is not sufficient to simply state witnesses are available and leave it to the trial judge to take responsibility for deciding whether or not the evidence will be tendered by the appellant, as well as deciding its admissibility. It is up to counsel to tender the evidence. The trial judge cannot be said to have declined to hear the evidence unless counsel calls the witnesses and the trial judge refuses to hear them, or, asks to have the evidence heard and is directly refused by the trial judge. At the very least, it would have to be shown that the trial judge made it practically impossible for counsel to call evidence, or ask to have evidence called, which was the situation in Johnson v. Lennert. Here, the trial judge said he wanted to hear evidence and counsel for the appellant made no effort to bring it forward.