RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Prejudicial Questioning by Trial Judge

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A Practice Manual, 4th Edition
© John E. MacDonald




Prejudicial Questioning by Trial Judge


R.I. R. EVID. 614: Calling and Interrogation of Witnesses by the Court

  • Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

State v. Phommachak, 674 A.2d 382 (R.I. 1996). “The authority of the trial justice to interrogate a witness extends to any ‘relevant matters proper to be presented to the jury’ in furtherance of justice. However, the trial justice must proceed ‘with caution’ in such an examination. He or she must also ‘guard against even the appearance of changing his [or her] position from that of a judicial officer impartially presiding at the trial to that of a partisan advocate interested in establishing the position of either party.’ The trial justice ‘should not be led to express by language, or the tones of his [or her] voice, or in any other manner his [or her] opinion as to the credibility of the witness or the weight which should be given to his testimony. His [or her] examination is to be governed by the same rules as those which govern counsel and his [or her] questions are equally open to exception.’” [Citations Omitted.]

    1. Therefore, when objecting or making a motion to pass based upon questions posed by the judge to a witness before the jury, it is important to point out the following for the record:
    2. The judge’s demeanor and tone of voice;
    3. Any inappropriate mannerisms or facial expressions made by the judge;
    4. How critical or prejudicial the testimony elicited by the judge is;
    5. How important the witness is to the State or defendant’s case (e.g. does the judge question the complainant or other key prosecution witness in a way so as to buttress his/her testimony while impugning the veracity of the defendant’s testimony?);
    6. At what point in the trial the judge engaged in questioning;
    7. The number of times that the judge engaged in questioning.


State v. Nelson, 982 A.2d 602 (R.I. 2009). Trial justice exceeded the scope of judicial interrogation when questioning two state witnesses at defendant’s trial for DUI resulting in serious bodily injury. R.I.S.C. vacated and remanded for a new trial, holding that both interrogations were prejudicial and too inflammatory to be remedied with a curative instruction.

  • Justice’s questions improperly took on an air of direct and cross-examination, and elicited inflammatory testimony that reinforced defendant’s intoxication to the jury. Most notably, the interrogations elicited testimony from a hospital laboratory technician about tests that could not be performed due to defendant’s severe intoxication, and then solicited the opinion of a crime laboratory director with respect to defendant’s relative blood alcohol level at various intervals following the collision.
  • The justice’s interrogation of the crime laboratory director involved a rephrased version of a question the prosecutor had previously asked and the witness had already answered. The court determined that the purpose could not be clarification when the judge asked a question to which he and the jury already knew the answer.
  • “A trial justice’s prerogative to question witnesses still is limited to inquiry that will clarify a matter which he justifiably feels is a cause for confusion in the minds of the jurors”; yet, even then, the trial justice should do so only in limited circumstances and “first allow counsel every opportunity to refine the witness’s testimony” before “cautiously” interrogating the witness himself. Id. at 615.


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