Questions to Witness by Judge: Cautionary Instruction
December 15th, 2021

RATIONALE: When the judge asks questions of a witness, there is a danger that the jury will place undue emphasis or importance on the question or to the answer elicited, or consider that the question indicates the judge’s view of the evidence. Therefore, a cautionary instruction admonishing the jury not to attach special weight to questions asked by the court may be appropriate.


POINTS AND AUTHORITIES: A judge has “has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. The court may not, however, assume the role of either the prosecution or of the defense and it must not convey to the jury the court’s opinion of the witness’s credibility. We reiterate that judicial questioning and comment during witness testimony should be temperate rather than argumentative. [Citations and internal punctuation omitted.] People v. Nieves (2021) 11 Cal.5th 404, 493-94; see also U.S. v. Tilghman (DC Cir. 1998) 134 F3d 414, 421.) “‘The influence of the trial judge on the jury is necessarily and properly of great weight’’ [citations], and jurors are ever watchful of the words that fall from him.” (Bollenbach v. U.S. (1946) 326 US 607, 612 [66 SCt 402; 90 LEd 350]; see also U.S. v. Wolfson (5th Cir. 1978) 573 F2d 216, 221 [judge’s words “‘carry an authority bordering on the irrefutable.’ [Citation]”].)

In sum, the trial judge must use caution in questioning a witness and must instruct the jury not to draw inferences from his questioning. (U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726.)


During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts of the case.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 22, p. 5 (1988).]


During the trial I questioned [certain witnesses] [a certain witness]. Do not conclude that I had, or have, an opinion about the testimony or credibility of that particular witness. You must not consider or be influenced in any way by anything that might suggest I have an opinion about the case. It is your opinion, not mine, that matters. It is you alone who must decide what evidence or witnesses, if any, are credible and what weight, if any, to give the evidence.

[See generally U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726; U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]


The fact that the Court has asked one or more questions of a witness for clarification or admissibility of evidence purposes is not to be taken by you in any way as indicating that the Court has any opinion as to the guilt or lack thereof of a defendant in this case, and you are to draw no such inference therefrom. That determination is up to you, and you alone, based on all of the facts in this case and the applicable law in these instructions.

[See U.S. v. Mickens (2nd Cir. 1991) 926 F2d 1323, 1328.]


Do not give the testimony of a witness any undue weight or lack of weight simply because I posed a question or questions to that witness. You must consider any questions that I ask and the answers thereto in the same light as any other questions and answers.


During the trial I asked questions of witnesses called by the parties. Consider that testimony as you would consider any other testimony. Do not assume that answers to my questions were more or less correct or important than answers to questions posed by counsel. Do not assume that because I asked questions that I have any opinion about the case. It is your job, and yours alone, to evaluate the evidence and to decide which witnesses to believe, if any, and how much weight, if any, to given their testimony.

[See U.S. v. Siegel (5th Cir. 1979) 587 F2d 721, 726.]

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