Conduct of Trial - Discretion of Judge to Question Witnesses
The trial judge has the right, in the exercise of his discretion, to question and cross-examine witnesses in order to clarify issues and move the case along. A trial Judge may assume an active role in the examination of witnesses where proper or necessary to facilitate or expedite the orderly progress of the trial.[1] The judge may ask leading questions.[2] However, the judge may not be biased or partisan.[3]
While "neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process”, the court's discretion is not unfettered. The overarching principle restraining the court's discretion is that it is the function of the judge to protect the record at trial, not to make it. [4] Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial.[5]
There is no absolute bar to a trial court asking a particular number of questions of a seated witness; [6] or recalling a witness to the stand[7]; or even allowing the People in narrow circumstances to reopen their case after a defense motion for a trial order of dismissal[8], when doing so advances the goals of truth and clarity. [9] A court may not, however, assume the advocacy role traditionally reserved for counsel[10] and in order to avoid this, the court's discretion to intervene must be exercised sparingly. [11]
[1] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002); Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept., 1988).
[2] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-231.
[3] In Habenicht v. R.K.O. Theatres, Inc. (1st Dept., 1965) the First Department held that a deprivation of a fair trial calls for a reversal. It noted that from the very inception of the trial the court indicated its lack of confidence in the merits of the plaintiff's case, and that indication was made in such fashion that it could not escape the notice of the jury. Not only did the Court, in its remarks, convey to the jury its feeling that the plaintiff's case had no merit, but it also prevented the plaintiff from presenting whatever case he did have. There was constant interference by the Court with the orderly presentation of plaintiff's case by his counsel. In addition, the trial court repeatedly sustained objections that were never made to testimony offered on behalf of the plaintiff and it overruled objections of plaintiff's counsel while being made, without affording counsel an opportunity to explain the basis for the objections.
In Matter of Washington v Edwards, 137 A.D.3d 1378, 26 N.Y.S.3d 804 (3d Dept., 2016) the Appellate Division reversed an order which held respondent in violation of a support order. After the mother testified that the father had only paid approximately $100 a year in support since the order, she said she did not have any documentary evidence to support her allegation. At the conclusion of her testimony, when the Support Magistrate questioned the mother as to whether she had any further evidence in regard to her petition, she answered in the negative. The Support Magistrate then provided her with a copy of the County Office of Child Support Enforcement Support Obligation Summary, which summarized the amounts owed and the payment history regarding the order and indicated that the father was in arrears. The Support Magistrate then questioned the mother regarding the contents of the summary, over objection, and repeated his question to the mother as to whether she had any documents that she would like to enter into evidence. After she again answered in the negative, the Support Magistrate inquired whether the mother was requesting that the summary report be admitted into evidence, at which point she answered affirmatively and, over the father’s continued objections, the document was admitted into evidence. The Support Magistrate thereafter used the summary report as the basis for his calculation of the amount that the father was in arrears. The Appellate Division held that while a Support Magistrate “may properly question witnesses to insure that a proper foundation is made for the admission of evidence and question a witness in an effort to clarify confusing testimony as well as to facilitate the orderly and expeditious progress of the hearing” the Support Magistrate exceeded his authority here. By actually providing the evidence to the mother during the hearing and using his questions to ensure that she introduced that evidence, it could not say that the Support Magistrate was merely ensuring that a proper foundation was set for the admission of the evidence or facilitating the expeditious progress of the hearing.
[4] People v Yut Wai Tom, 53 NY2d 44, 58 [1981); In Matter of Yadiel Roque C, 793 N.Y.S.2d 857(4th Dept, 2005), Respondent appealed from an order adjudicating him to be a juvenile delinquent, contending that he was denied a fair trial by the court's intrusive conduct during the fact-finding hearing. Although respondent's contention was not preserved for review, the Appellate Division reviewed it in the interest of justice, and reversed the order. It held that although a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on 'the function or appearance of an advocate. In last analysis ... [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it”, including juvenile delinquency proceedings. Here, "[t]he course of conduct of the trial judge was such that he assumed the appearance of an advocate at the trial by his extensive examination of certain witnesses".
[5] People v Yut Wai Tom, 53 NY2d 44, 58 (1981); People v Arnold, 98 NY 2d 63, 745 NYS2d 782 (2002); Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011); Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011).
[6] People v Yut Wai Tom, 53 NY2d 44; People v Mees, 47 NY2d 997 (1979).
[7] Thom v Jaymee Fashions, 35 AD2d 946 (1970), affd 29 NY2d 534 (19710; see also People v Kovzelove, 242 AD2d 477.
[8] People v Whipple, 97 NY2d 1 (2001)
[9] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002)
[10] In Carroll v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 84 (1st Dept., 1993)) the Appellate Division noted that a court may conduct limited examination of a witness "to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial”.
[11] People v Jamison, 47 NY2d at 883.
The trial judge has the right, in the exercise of his discretion, to question and cross-examine witnesses in order to clarify issues and move the case along. A trial Judge may assume an active role in the examination of witnesses where proper or necessary to facilitate or expedite the orderly progress of the trial.[1] The judge may ask leading questions.[2] However, the judge may not be biased or partisan.[3]
While "neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process”, the court's discretion is not unfettered. The overarching principle restraining the court's discretion is that it is the function of the judge to protect the record at trial, not to make it. [4] Although the law will allow a certain degree of judicial intervention in the presentation of evidence, the line is crossed when the judge takes on either the function or appearance of an advocate at trial.[5]
There is no absolute bar to a trial court asking a particular number of questions of a seated witness; [6] or recalling a witness to the stand[7]; or even allowing the People in narrow circumstances to reopen their case after a defense motion for a trial order of dismissal[8], when doing so advances the goals of truth and clarity. [9] A court may not, however, assume the advocacy role traditionally reserved for counsel[10] and in order to avoid this, the court's discretion to intervene must be exercised sparingly. [11]
[1] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002); Jordan v Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept., 1988).
[2] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-231.
[3] In Habenicht v. R.K.O. Theatres, Inc. (1st Dept., 1965) the First Department held that a deprivation of a fair trial calls for a reversal. It noted that from the very inception of the trial the court indicated its lack of confidence in the merits of the plaintiff's case, and that indication was made in such fashion that it could not escape the notice of the jury. Not only did the Court, in its remarks, convey to the jury its feeling that the plaintiff's case had no merit, but it also prevented the plaintiff from presenting whatever case he did have. There was constant interference by the Court with the orderly presentation of plaintiff's case by his counsel. In addition, the trial court repeatedly sustained objections that were never made to testimony offered on behalf of the plaintiff and it overruled objections of plaintiff's counsel while being made, without affording counsel an opportunity to explain the basis for the objections.
In Matter of Washington v Edwards, 137 A.D.3d 1378, 26 N.Y.S.3d 804 (3d Dept., 2016) the Appellate Division reversed an order which held respondent in violation of a support order. After the mother testified that the father had only paid approximately $100 a year in support since the order, she said she did not have any documentary evidence to support her allegation. At the conclusion of her testimony, when the Support Magistrate questioned the mother as to whether she had any further evidence in regard to her petition, she answered in the negative. The Support Magistrate then provided her with a copy of the County Office of Child Support Enforcement Support Obligation Summary, which summarized the amounts owed and the payment history regarding the order and indicated that the father was in arrears. The Support Magistrate then questioned the mother regarding the contents of the summary, over objection, and repeated his question to the mother as to whether she had any documents that she would like to enter into evidence. After she again answered in the negative, the Support Magistrate inquired whether the mother was requesting that the summary report be admitted into evidence, at which point she answered affirmatively and, over the father’s continued objections, the document was admitted into evidence. The Support Magistrate thereafter used the summary report as the basis for his calculation of the amount that the father was in arrears. The Appellate Division held that while a Support Magistrate “may properly question witnesses to insure that a proper foundation is made for the admission of evidence and question a witness in an effort to clarify confusing testimony as well as to facilitate the orderly and expeditious progress of the hearing” the Support Magistrate exceeded his authority here. By actually providing the evidence to the mother during the hearing and using his questions to ensure that she introduced that evidence, it could not say that the Support Magistrate was merely ensuring that a proper foundation was set for the admission of the evidence or facilitating the expeditious progress of the hearing.
[4] People v Yut Wai Tom, 53 NY2d 44, 58 [1981); In Matter of Yadiel Roque C, 793 N.Y.S.2d 857(4th Dept, 2005), Respondent appealed from an order adjudicating him to be a juvenile delinquent, contending that he was denied a fair trial by the court's intrusive conduct during the fact-finding hearing. Although respondent's contention was not preserved for review, the Appellate Division reviewed it in the interest of justice, and reversed the order. It held that although a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on 'the function or appearance of an advocate. In last analysis ... [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it”, including juvenile delinquency proceedings. Here, "[t]he course of conduct of the trial judge was such that he assumed the appearance of an advocate at the trial by his extensive examination of certain witnesses".
[5] People v Yut Wai Tom, 53 NY2d 44, 58 (1981); People v Arnold, 98 NY 2d 63, 745 NYS2d 782 (2002); Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011); Matter of Kyle FF, 85 A.D.3d 1463, 926 N.Y.S.2d 196 (3 Dept, 2011).
[6] People v Yut Wai Tom, 53 NY2d 44; People v Mees, 47 NY2d 997 (1979).
[7] Thom v Jaymee Fashions, 35 AD2d 946 (1970), affd 29 NY2d 534 (19710; see also People v Kovzelove, 242 AD2d 477.
[8] People v Whipple, 97 NY2d 1 (2001)
[9] People v Arnold, 98 N.Y.2d 63, 745 NYS2d 782 (2002)
[10] In Carroll v Gammerman, 193 A.D.2d 202, 602 N.Y.S.2d 84 (1st Dept., 1993)) the Appellate Division noted that a court may conduct limited examination of a witness "to elicit significant facts, clarify an issue or facilitate the orderly and expeditious progress of the trial”.
[11] People v Jamison, 47 NY2d at 883.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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