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16.14 Conduct Of Judge

     16.14.2 Questions Of Witness By Judge

    16.14.2.1 Questions To Witness By Judge: Cautionary Instruction
    16.14.2.2 Questions Of Witness By Judge: Right Of Defendant To Ask Additional Questions
    16.14.2.3 Judge Calling Witness: Cautionary Instruction

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RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to questions asked by the court may be appropriate.

POINTS AND AUTHORITIES: A judge has authority to question a witness but this rule does not permit the judge to ask questions which indicate a belief that the witness is not credible. (See e.g., U.S. v. Tilghman (DC Cir. 1998) 134 F3d 414, 421.) "'The influence of the trial judge on the jury is necessarily and properly of great weight'’ [citations], and jurors are ever watchful of the words that fall from him." (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350]; see also U.S. v. Wolfson (5th Cir. 1978) 573 F2d 216, 221 [judge's words "'carry an authority bordering on the irrefutable.' [Citation]"].) Hence, the trial judge must use caution in questioning a witness and must instruct the jury not to draw inferences from his questioning (U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726.)

    See also NCJIC 16.14.1.2 [Bench Conference: No Inference As To Judge's Opinion Of The Case].

    See also NCJIC 297.2.2 [Standard Of Prejudice On Appeal: Influence Of The Judge].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 7.5; 10.1].

See A Manual On Jury Trial Procedures [3.6B. Judges Examining Witnesses: Criminal Jury Cases].

    During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts of the case.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 22, p. 5 (1988).]

    During the trial I questioned [certain witnesses] [a certain witness]. Do not conclude that I had, or have, an opinion about the testimony or  credibility of that particular witness.  You must not consider or be influenced in any way by anything that might suggest  I have an opinion about the case.  It is your opinion, not mine, that matters.  It is you alone who must decide what evidence or witnesses, if any, are credible and what weight, if any, to give the evidence.

[See generally U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726; U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]

    The fact that the Court has asked one or more questions of a witness for clarification or admissibility of evidence purposes is not to be taken by you in any way as indicating that the Court has any opinion as to the guilt or lack thereof of a defendant in this case, and you are to draw no such inference therefrom. That determination is up to you, and you alone, based on all of the facts in this case and the applicable law in these instructions.

[See U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]

    Do not give the testimony of a witness any undue weight or lack of weight simply because I posed a question or questions to that witness.  You must consider any questions that I ask and the answers thereto in the same light as any other questions and answers.

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PRACTICE NOTE: If the judge asks questions after counsel has finished examining a witness, the requirements of fairness, due process and confrontation should allow counsel to question the witness again in light of the issues raised in the questions the court asked. (See generally Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 38:2, p. 38-3.)

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RATIONALE: There may be a risk that the jury will interpret the judge's calling of a witness as indicating a preference for one side or the other.

POINTS AND AUTHORITIES:  See NCJIC 297.5.1 [Argument Of Counsel Cannot Substitute For Instruction]; see generally People v. Mathews (CA 1994) 25 CA4th 89 [30 CR2d 330]; People v. Edelbacher (CA 1989) 47 C3d 983 [254 CR 586]; see also Potuto, Saltzburg, Perlman, FEDERAL CRIMINAL JURY INSTRUCTIONS 3.15 [Calling Of Witness Or Questions By Judge] (Lexis, 2nd ed. 1993).

    See also NCJIC 297.5.1 [Argument Of Counsel Cannot Substitute For Instruction]; NCJIC 29.2.9 [Court-Appointed Expert Should Be Treated The Same As Any Other].

    During the course of the trial I may call a witness to testify. If I do, that does not indicate I have any opinion about the facts of the case.

[Adapted from Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 22, p. 5 (1988).]