§ 2.01  Introduction [17]

 

The allocation of responsibilities between judge and jury is a central part of the law of evidence. The judge decides the admissibility of evidence, the jury decides its "weight," which includes the credibility of witnesses.

 

§ 2.02  Role of the Judge  [17-18]

 

“In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial.” Quercia v. United States, 289 U.S. 466, 469 (1933).  

 

§ 2.03  Court-called Witnesses  [18-19]

 

Rule 614(a) recognizes the authority of the trial court to call witnesses on its own motion or at the behest of one of the parties.  The authority to call witnesses includes the authority to appoint expert witnesses (Rule 706).

 

§ 2.04  Court Questioning of Witnesses  [19-20]

 

Rule 614(b) recognizes the trial court’s authority to question witnesses.  It permits the judge to examine witnesses in order to develop facts germane to the issues and to clear up doubts that may arise from the testimony.  An impartiality requirement is implicit in the federal rule.  Rule 614(c) provides that objections to the questioning of witnesses by the court may be made at the time the witness is questioned or at the next available opportunity that the jury is absent.

 

§ 2.05  Commenting on Evidence  [20-21]

 

Unlike most state judges, federal trial judges have long had the authority to comment on the evidence.   The judge “may not assume the role of a witness.  He may analyze and dissect the evidence, but he may not either distort it or add to it. ...  This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’” Quercia v. United States, 289 U.S. 466, 470 (1933) (citations omitted).

 

§ 2.06  Jury Questioning of Witnesses [21-22]

 

There is no Federal Rule on questioning by jurors, but the cases recognize the trial court’s discretion on this issue.  There are a number of dangers in the practice.  If jury questioning is permitted, jurors should be required to submit written questions so that the judge has the opportunity to review the propriety of questions.  If a question is unobjectionable, the judge puts it to the witness.