A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.6     Judges Examining Witnesses
          A. Civil Jury Cases
          B. Criminal Jury Cases
          C. Non-Jury Cases  

A trial judge has the right to examine witnesses and call the jury's attention to important evidence. Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir. 1986). Questions by the judge that aid in clarifying the testimony of witnesses, expedite the examination of witnesses, or confine the testimony to relevant matters in order to arrive at the ultimate truth are proper so long as conducted in a non-prejudicial manner. Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1383 (9th Cir. 1984). Questions by a court indicating skepticism are proper when the witnesses are permitted to respond to the district court's expressed concerns to the best of their ability. Id. A judge must be careful, however, not to project to the jury an appearance of advocacy or partiality.

The trial judge should exercise great caution in examining witnesses during a criminal trial. The court may participate in the examination of witnesses for the purpose of clarifying the evidence, controlling the orderly presentation of evidence, confining counsel to evidentiary rulings and preventing undue repetition of testimony. United States v. Allsup, 566 F.2d 68, 72 (9th Cir. 1977). However, "the court must . . . be mindful that in the eyes of a jury, the court occupies a position of 'preeminence and special persuasiveness,'" and thus must avoid the appearance of giving aid to one side or the other. Id. (quoting United States v. Trapnell, 512 F.2d 10, 12 (9th Cir. 1975)). See also United States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001) ("The judge may therefore 'participate in the examination of witnesses to clarify issues . . . .'") (quoting United States v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994)).

"A trial judge's participation oversteps the bounds of propriety and deprives the parties of a fair trial only when 'the record discloses actual bias . . . or leaves the reviewing court with an witnesses projected to the jury an appearance of advocacy or partiality.'" Parker, 241 F.3d at 1119 (quoting United States v. Mostella, 802 F. 2d 358, 361 (9th Cir. 1986) (citation and further internal quotation marks omitted)). When questioning occurs, prejudice may be deflected by the trial court instructing the jury "not to infer any opinion from its questioning" and reminding the jury that they are the judges of the facts. Parker, 241 F.3d at 1119 (citation omitted). See also Swinton v. Potomac Corp., 270 F.3d 794, 808 (9th Cir. 2001), cert. denied, 535 U.S.1018 (2002).

In several cases, prejudicial judicial questioning has resulted in the reversal of convictions. See, e.g., Allsup, 566 F.2d at 72-73 (the court's rehabilitation of a prosecution witness whose

credibility had been seriously undermined by the defense constituted error which, when considered together with other errors, required a new trial); United States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974) (judge threatened and intimidated witnesses and gave jury the impression he thought defense witness was lying under oath); United States v. Stephens, 486 F.2d 915, 916 (9th Cir. 1973) (judge implied to jury that he thought defendant was guilty). See also United States v. Saenz, 134 F.3d 697, 704, 714 (5th Cir. 1998) (judge's excessive questioning of witnesses required reversal); United States v. Tilghman, 134 F.3d 414, 418-19 (D.C. Cir. 1998) (judge's questioning of defendant that may have given jury impression that judge doubted defendant's credibility required reversal).