Chapter 8 - 8.4 Adversarial Examination Of Witnesses By The Court

• Jurisdiction: Virginia

8.4 ADVERSARIAL EXAMINATION OF WITNESSES BY THE COURT¹⁰

Sometimes the judge gets involved, as when an examination is proceeding too slowly.¹¹ In order to preserve this issue, the practitioner must object to the judge's own questions. This takes a combination of courage and tact, of course ("Your honor, I ask you to rule that your own question is improper"), but it is absolutely essential.

A jury should not be exposed to extraneous influences when deciding a case. This principle is violated when a judge makes it clear in questioning a witness that he or she has chosen a side. Although a judge is permitted to make a variety of suggestions to counsel when the jury is absent, it is not appropriate for the judge to actively interrogate witnesses in the jury's presence because it can change the jury's view of the litigants' positions.¹² This type of interrogation of a witness should be distinguished from interactions in which a judge is merely seeking clarification of an issue or directing the trial process.¹³

In United States v. Filani,¹⁴ the Second Circuit...