§ 2.02 ROLE OF THE JUDGE

• Jurisdiction: United States

§ 2.02. ROLE OF THE JUDGE

The Supreme Court has written: "In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial."³ Nevertheless, by comparison with civil law countries, the American judge's role is passive, not active. In the civil law system, the judge conducts the investigation and is the first to question witnesses. In our system, the lawyers are the fact-gathers and are responsible for presenting the facts to the jury.

This is not to say, however, that the trial judge cannot influence the outcome of a trial. A judge's decisions and attitude often affect the conduct of the proceedings. While some of the judge's authority is found in explicit rules such as those recognizing the court's power to call and question witnesses, most of it evolves from the many issues that arise during the course of a trial that the judge must decide.

Rule 611(a) recognizes the court's general authority to control the conduct of trial.⁴ For example, the judge has discretionary authority to: (1) alter the order of proof at trial, (2) permit a witness to testify out of order, (3) allow a witness to be recalled, and (4) grant a party's request to reopen its case.⁵ This chapter examines the calling and questioning of witnesses, as well as commenting on the evidence.

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Notes:

^[3] Quercia v. United States, 289 U.S. 466, 469 (1933). See also United States v. Martin, 189 F.3d 547, 553 (7th Cir. 1999) ("Along with other circuits, we have frequently reminded litigants that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. Rather than simply being a silent spectator, intelligent questioning by the trial judge is his...