Objection, your Honour: examining the questioning practices of Canadian judges

Abstract

ABSTRACT Judges are the gatekeepers of evidence in the justice system. Granted that witness testimony is pivotal to the truth-seeking function of the criminal justice system, and that judges sometimes intervene and ask questions in the courtroom to help ensure the testimony is accurate, little is known about judges’ questioning practices. In the current study, we examine the questioning practices of a sample of Canadian judges. A total of 3,140 utterances spoken by 15 different judges across 22 criminal cases (169 witness examinations) were classified as one of 13 utterance types, and assessed as a function of examination type; utterance and response lengths were also calculated. Results showed that, when talking to witnesses directly, most of the questions asked were clarification (37%), followed by facilitators (17%), and closed yes/no (10%); less than 1% of all question types were open-ended. The longest answers were provided in response to open-ended questions. We also found that closed yes/no questions were the most frequently used question types during judge-led lines of questioning (i.e. examinations per curium), as opposed to lawyer-led lines of questioning (i.e. during direct and cross examinations). Implications for the truth-seeking function of the justice system are discussed.