MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part V(C). Other Issues - Part V(C) 2. Role Of Judge In Trial

        Part V(C)2a    Role Of Judge In Trial: General Principles

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

3.2.2 Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case

Trial judges are not mere moderators. They may comment on the evidence, question witnesses, elicit facts not yet adduced, or clarify those previously presented.

United States v. Wright, 573 F.2d 681 (1st Cir. 1978)
United States v. Dobbs, 63 F.3d 391 (5th Cir. 1995)

A trial judge has the privilege, and at times the duty, to elicit facts he or she deems necessary to the clear presentation of the issues. To this end the judge may examine witnesses who testify, provided that the judge preserves an attitude of impartiality and guards against giving the jury an impression that he or she believes the defendant to be guilty.

United States v. Baron, 602 F.2d 1248 (7th Cir. 1979)
Llach v. United States, 739 F.2d 1322 (8th Cir. 1984)

A judge's questioning of witnesses to clarify evidence for the jury was appropriate despite the fact that the questions may have permitted the witness to emphasize testimony helpful to the prosecution, or elicited answers detrimental to the defense.

Duckett v. Godinez, 67 F.3d 734 (9th Cir. 1995)

The trial judge is well advised to refrain from any challenging questioning of a defendant, and especially to refrain from propounding any question that indicates the judge's disbelief in the essence of the defense.

Johnson v. Scully, 727 F.2d 222 (2d Cir. 1984)

A trial judge may interrogate a witness to clarify the witness's testimony or to ensure that a case is fairly tried. However, when the attorneys are competently conducting their cases, it is improper for the trial judge to question the witnesses. By doing so, the judge places the opposing counsel in a disadvantageous position. The attorney may hesitate to object to the judge's examination for fear of creating, or giving the appearance of creating a conflict with the judge.

United States v. Welliver, 601 F.2d 203 (5th Cir. 1979) overruled on other grounds by United States v,. Adamson, 700 F.2d 953 (5th Cir. 1983)

In a complex trial, intervention by the judge is often needed to clarify what is going on. If the facts are becoming muddled and neither side is succeeding in attempts to clarify them, the judge performs an important duty by interposing clarifying comments or questions.

United States v. Hickman, 592 F.2d 931 (6th Cir. 1979)
United States v. Laurins, 857 F.2d 529 (9th Cir. 1988)
But see United States v. Saenz, 134 F.3d 697 (9th Cir. 1998)

A judge's absence during a criminal trial, including court proceedings after the jury begins deliberations, is error of constitutional magnitude.