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

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.

KEYWORDS:

• Courtroom questioning
• questioning practices
• judiciary
• judges
• truth-seeking

Acknowledgement

Thank you to the clerks at the Supreme Court of Newfoundland and Labrador (Trial Division) courthouse in St. John’s, NL, Canada, for providing the researchers with the dataset.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

The data that support the findings of this study are available from the corresponding author upon reasonable request.

Notes

1 The Statutory Orders and Regulations governing the Rules of the Supreme Court of Canada (2002) was repelled and amended in May 2011. Prior to this, Section 40 (1)(e) of these rules outlined the requirements for formatting court documents, and stated that evidence tendered by a judge was referred to as an ‘examination per curium’. The majority of cases in our sample were bound to the Statutory Orders and Regulations of SOR/2002-156, and as a consequence, the examinations conducted by a judge were referred to as examinations per curium. For consistency, we have retained this terminology throughout our paper. For further information about the repelled and amended changes to the Rules of the Supreme Court of Canada (2002), see https://www.scc-csc.ca/ar-lr/notices-avis/11-04-eng.aspx

2 Concerns were identified about the wide range of time that the court cases were sampled from (i.e., 1991-2015; we thank an anonymous reviewer for this insightful feedback). We conducted additional analyses to test whether questioning practices differed between earlier and more recent court cases; we found the same pattern of results as reported in the manuscript. Therefore, we have no concerns related to the wide gap in years with the data. For further information on these analyses, please contact the corresponding author.