§ 2.04 Court Questioning of Witnesses

• Jurisdiction: United States

§ 2.04 Court Questioning of Witnesses

Generally, the questioning of witnesses is the job of the parties. In the adversary system, the parties develop the facts. Yet, Federal Rule 614(b) recognizes the trial court's authority to question witnesses. It permits the judge to examine witnesses in order to develop facts germane to the issues and to clear up confusion that may arise from the testimony.¹⁴

Impartiality. An impartiality requirement is implicit in the federal rule. One court observed: "Because juries, not judges, decide whether witnesses are telling the truth, and because judges wield enormous influence over juries, judges may not ask questions that signal their belief or disbelief of witnesses."¹⁵ In a criminal case, a trial court's lack of impartiality raises due process concerns.¹⁶ The danger is that the jury might infer the judge's opinion of a witness through the persistence, tenor, range, or intensity of the judge's questions.¹⁷ According to Judge Frankel: "We should be candid, moreover, in recognizing that juries are probably correct, most of the time if they glean a point of view from the judge's interpolations. Introspecting, I think I have usually put my penetrating questions to witnesses I thought were lying, exaggerating, or obscuring the facts. Less frequently, I have intruded to rescue a witness from questions that seemed unfairly to put the testimony in a bad light or to confuse its import."¹⁸

Objections. Rule 614(c) provides that objections to questioning by the court may be made at the time the witness is questioned or at the next time the jury is absent. This provision modifies Rule 103(a)(1)(A), which requires objections to be "timely," that is, without delay.¹⁹ Rule 614(c) "is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures."²⁰

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Notes:

^[14] See McMillan v. Castro, 405 F.3d 405, 410 (6th Cir. 2005) ("The court may interject itself into the proceedings when necessary to clear up confusion in the evidence or to supplement, in an impartial fashion, the presentation of a poorly prepared attorney.") (internal quotations and citation omitted).

^[15] United States v. Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998). See also Fed. R. Evid. 614 advisory committee's note ("The authority is, of course, abused when the judge...