Can a Judge Question Witnesses?
We've written before about the standard for obtaining a new judge and about the outrageous levels of misconduct that are required to have a judge removed from office. In short unless a judge is secretly related to one of the parties or is fool enough to say something that truly offends the appellate court, you are unlikely to find a way to replace him or her. Bad rulings and nasty behavior toward the parties and counsel are not exactly permitted, but it's a rare case where they lead to reassignment, and even then, this is most likely to happen following a successful appeal, with the appellate court offering a face-saving explanation.
For better or worse judges have a lot of discretion about how they act in a courtroom, and while many are scrupulously fair and bend over backwards to at least appear impartial, there are others with a different approach.
One very frustrating thing that judges will sometimes do at trial is to question witnesses directly, usually by interrupting a lawyer in the middle of a direct or cross examination to ask a question or two of their own. While this is usually couched as “clarifying” a witness's answer so as to avoid jury confusion, it's difficult to see it as anything other than a thumb on the scale for whichever side the judge decides “ought” to win.
But is this allowed? And is it possible to get a new trial if the judge goes too far in taking over the questioning of witnesses?
At common law, judges had the unambiguous right to question witnesses. As Professor Wigmore notes:
One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable to elicit the truth more fully. This just exercise of his function was never doubted at common law; the judge could even call a new witness of his own motion, and could seek evidence to inform himself judicially; much more could he ask additional questions of a witness already called but imperfectly examined. [1]
This is hardly surprising, given the common law right of judges to comment on the evidence and, until Bushell's Case [2] in 1670, imprison jurors until they voted the way that the judge desired.
In federal court, the modern rule is Fed. R. Evid. 614 which provides:
(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
There are parts of this rule that don't seem terribly realistic – the idea that a judge is going to fairly consider an objection to his or her own question would seem radically out of touch with experience. But the rule clearly provides judges with the right to ask at least some questions of witnesses. That said, both accepted practice and appellate authority impose limits on how thoroughly a judge can assume the role of a questioning attorney.
These restrictions are of particular force in criminal trials where the judge's right to clarify “is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office” so “that hostile comment of the judge shall not render vain the privilege of the accused to testify in his own behalf.” [3] Indeed, “when a judge cross examines a defendant and his witnesses extensively and vigorously he may present to others an appearance of partisanship, and in the minds of jurors, so identify his high office with the prosecution as to impair the impartiality with which the jury should approach its deliberations.” [4]
While these words may sound protective, they are, generally speaking, just words. In practice, trials are rarely overturned even where judges aggressively question defendants and their witnesses. However, occasionally even the broad deference given to trial courts is not enough.
For example, in United States v. Tilghman, [5] Court of Appeals for the DC Circuit reviewed the conviction of a government worker charged with hiding income so that he could collect disability benefits. The defendant claimed that he had been told that he had no obligation to report income below $300 per week. The judge, however, was not convinced:
THE COURT: You didn't put this on any form, did you?
DEFENDANT: Did I put it on a form? No sir; this was a telephone conversation.
THE COURT: Did this Julio Mendez put it on a form?
DEFENDANT: I don't know, sir.
THE COURT: We just have to take your word for it?
DEF. COUNSEL: Objection, Your Honor.
THE COURT: Over-ruled. Is that right?
DEFENDANT: I'm sworn to tell the truth, sir.
THE COURT: I know, but we have to take your word for it; is that right?
DEFENDANT: I don't know if he has any record of it or not.
The judge also expressed skepticism concerning how he had filled out certain forms, and effectively tag-teamed with the prosecutor in questioning:
THE COURT: You were an employee of Tilghman Enterprises?
DEFENDANT: That is correct, sir.
THE COURT: Doesn't that fit in the paragraph Employment other than Self-Employment? Under this heading, you must report all employment.
DEFENDANT: For which you receive wages.
DEF. COUNSEL: Objection, Your Honor.
THE COURT: It goes on to say if you perform work for which you were not paid, you must show a rate of pay of what it would have cost. You didn't put that in any of them?
DEFENDANT: I felt that was not applicable, sir, because there was no way to compute those figures.
DEF. COUNSEL: Your Honor, if I may just renew my objection.
THE COURT: The objection is over-ruled.
PROSECUTOR: In other words, Mr. Tilghman, it is your belief that the Department of Labor had to specifically ask you, Okay, Mr. Tilghman, asterisks, we want to know about your corporation?
DEFENDANT: No. It was my belief that I had to answer carefully, accurately, and honestly; and I did so.
On review, the DC Circuit threw out the conviction, finding that the jury “could reasonably have interpreted the judge's pointed comments as reflecting his personal disbelief” of the defendant.
The Court of Appeals for the Second Circuit reached a similar result in United States v Victoria. [6] A trial judge in a drug possession case interrupted one defendant's direct examination to question him at length about his immigration status and his failure to turn himself over to INS. The judge then quizzed the other defendant about his knowledge of cocaine production and, after establishing that the witness’s testimony differed from that of a DEA agent, pointedly asked the defendant whether he was calling the agent a liar. On review, the Second Circuit found the entire line of questioning improper, holding that while a judge can clarify factual issues in testimony, it is improper for a judge to question a defense witness solely to attack that witness's credibility.
What about civil cases? Can a judge go too far there? It is harder. Civil parties do not have the same constitutional protections, and appellate courts are less concerned with the procedural integrity of civil trials. But it can happen.
In Santa Maria v Metro North, [7] a trainman sued Metro North Railroad after a company cot he was sleeping on suddenly collapsed. The plaintiff had previously sued Metro North four times for on-the-job accidents and had used the same lawyer each time. This might seem suspicious, but I will note that the last time we had a trial against Metro North, multiple potential jurors were excused because of prior lawsuits between them or their family members and the railroad. Connecticut is not Switzerland.
Regardless, the trial judge clearly did not think much of the plaintiff, his case, or his lawyer, and wasn't shy about saying so. Much of the Second Circuit's decision on appeal focuses on the trial court's bizarre abuse of the plaintiff's lawyer, whom the judge found in contempt for not sitting down quickly enough when told and whom the judge repeatedly insulted because he was from Philadelphia. But the Second Circuit also took exception to the “sarcastic cross examination by the court of plaintiffs expert witnesses” which “plainly conveyed the court's skepticism as to the plaintiff's case.” In a rare rebuke to a trial courts “attitude” in a civil case, the Second Circuit reversed the defense verdict and remanded for trial in front of a new judge.
While reversals like those above are rare, they do highlight the key issue from the perspective of the appellate courts. Credibility. It is axiomatic that juries, not judges, are to evaluate a witness's credibility. As such, a judge who attacks a witness as a liar or insinuates through questioning that he or she is not to be believed has crossed one of the few lines that constrains his or her otherwise broad discretion when it comes to the management of trials.
[1] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume I § 784 (1904).
[2] Bushell’s Case, Vaughn 135, 124 Eng. Rep. 1006 (C.P. 1670)
[3] Quercia v. United States, 289 U.S. 466, 471 (1933).
[4] Holmes v. United States, 271 F.2d 635, 639 (4th Cir. 1959).
[5] 134 F.3d 414 (D.C. Cir. 1998).
[6] 837 F.2d 50 (2d Cir. 1998).
[7] 81 F.3d 265 (2d Cir. 1996).
