SSIA.
Thanks,
Rob
Are you sure you have the question right? Common law is law derived from the courts as distunguished from statutory law. It refers to the law of Engalnd prior to the American Revolution. Heck, maybe it’s me that’s confused.
Depending on the type of a court, a judge is pretty much God, and can do whatever he pleases.
I’ve seen it happen, so my answer will be yes. In my personal experience, it has always happened in non jury matters where the judge is also the trier of fact.
Not all judges do this. Some judges are very hands off and will treat it like a jury trial, but some will simply ask the questions that they want answered. In one case, it was clear that the judge wanted this wrapped up quickly so she took over. She took over from the Plaintiff’s counsel and asked a series of questions that she wanted to know. The other times, it was in a court of non-record, and the judge was not pleased with some of the Defendant’s antics.
What does this have to do with common law?
In civil law jurisdictions, the judge or magistrate can take a much more active role in examining witnesses and generally seeking out the truth, compared to a common-law judge, whose role is to act as a referee between prosecution and defense.
Civil law jursidiction like? Louisianna? Oh wait, you mean the US isn’t the only country with a justice system :smack:
Yes: I think that in this respect, Louisiana, Quebec and Scotland don’t go the whole civil-law way. You have to look at jurisdictions like France, Germany and Mexico.
If by common law you mean UK-like jurisdictions, then yes, judges can ask questions of a witness, even in jury trials and even the accused (if he gives evidence). But they do so with restraint, and to clarify. If they were to take over the questioning process, or cross-examine aggressively or the like then they know there is a risk an appellate court will overturn the decision. The boundary here is not easily definable, and phrases like “the judge descended into the arena” and “fairness” get thrown around.
Judges sometimes ask questions of witnesses in Chancery Court in my state. This is a court of equity, handling family law, land matters, probate, etc. and features primarily bench trials–but in paternity or will contest cases, a jury trial is possible. I did a couple of jury trials in paternity cases years ago.
In Circuit Court, Judges can ask questions, but seem to do so less often than Chancellors.
I’ve seen it happen in two different ways…during either direct or cross examination, or sometimes after both sides have finished with the witness. In the latter case, the Judge will usually allow either or both attorneys to ask any follow up questions they wish based on the Judge’s questioning.
“Common law Jurisdiction” is a common short-hand for a jursdiction which derived its legal system primarily from the English legal system. In addition to the body of law, it also includes things like the English system of court organization and the adversarial system for counsel arguing cases in court.
A civil law jurisdiction is one which derived its legal system ultimately from the Roman civil law. The role of the courts in the civil system is different than the role of the courts in the common law systems. As well, the civil systems generally do not use the adversarial role for lawyers.
In civil systems, the judges of the court have greater control over the proceedings and often are the ones who ask questions of witnesses. In the common law systems, questioning of witnesses is primarily the role of the lawyers, not the judges.
So what the OP is asking, using this shorthand, is: “To what degree, if at all, can judges in a system derived from the English court system ask questions of witnesses?”
Turning to the actual question asked by the OP:
The answer will vary tremendously, based on the particular context, the type of proceedings, the traditions and laws of a particular jurisdiction, and so on. There is no single model of a “common law court”, any more than there is a single type of “civil law court.”
For example, there is a big difference between a jury trial and a non-jury trial. In a jury trial, a judge has to be very careful not to influence the jury in its deliberations, and therefore will be very circumspect in asking questions of witnesses, for fear of appearing to usurp the role of counsel or to be taking one side over the other.
By contrast, in a judge-alone trial, with out a jury, the judge is the decider of facts, and is the person who needs to understand exactly what the witnesses are saying. A judge in those circumstances may feel freer to ask questions of a witness. Even here, however, the judge has to be careful not to appear to favour one side over another. Questions from the judge, if any, tend to come after both counsel have examined the witness, because the judge doesn’t want to interfere with the way the counsel is examining the witness. If a judge asks questions, in my experience they tend to be along the lines of: “I’m not quite sure I understood what you said on this point X. Could you elaborate a bit?” Open-ended questions of that sort that don’t lead the witness to a particular conclusion are the safest for a judge to ask.
I’ve had judges ask questions now and then. As has been stated, they usuallly do so with restraint. I think Paul Newman said it best in The Verdict,
When I had jury duty the only time the judge asked a witness anything it was just to clarify their answers to something asked by one of the lawyers. Sometimes he’d tell a witness to get to the point if they started rambling about stuff that had nothing to do with the question or to gently warn them if they started to get sarcastic. Both of the adult female witnesses needed to be reminded that they weren’t to refer to anyone by their first name only (one was the defendant’s wife and she ended up describing her sex life while refering to her husband as “Mr ____”). It was sureal.
The Paul Newman transcript is a bit over the top IMO.
A distinction must be made between when the judge tells a witness off for being evasive, or not answering the Advocates question or being disruptive and when the judge asks a question of the witness himself. The former is part and parcel of his duties as a judge in an adversarial courtroom, the later is something he should do only when necessary, it is Counsels job to examine witnesses and not his.
A typical example of a question is where the judge wants clarification. To take somethig from my own practice.
AK84: You said you came to London, where did you stay?
Witness: The Swisshotel at the Howard
Ak84: When did you get there
Witness: About 6 PM
His Lordship: Why did you choose that Hotel?
I just got done with two small claims cases on Wednesday and the judge sure took control and questioned the witnesses (including myself…I was the plaintiff). All involved gave their statements and she took over questioning from that point on. Keen questions, too.
In a few examples she was even quite strident about giving instructions about proper behavior and whether an act by the defense was justified or not.