Law Lessons from C.F. V. L.M., App. Div., A-3187-08T2, February 26, 2010:

Trial judges may intervene in questioning witnesses, especially in cases involving pro se litigants. See Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006). In State v. Medina, 349 N.J. Super. 108 (App. Div.), certif. denied, 174 N.J. 193 (2002), the court said, “Our courts have long rejected the ‘arbitrary and artificial methods of the pure adversary system of litigation which regards the lawyers as players and the judge as a mere umpire whose only duty is to determine whether infractions of the rules of the game have been committed.’” Id. at 130 (quoting State v. Riley, 28 N.J. 188, 200 (1958), cert. denied, 359 U.S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1959)).

The court found “high value” in “the discretionary power of a judge to participate in the development of proof” because a fair trial is the judge’s responsibility. Id. at 131; see State v. Guido, 40 N.J. 191, 207 (1963); see also N.J.R.E. 611(a) (the judge “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to . . . make the interrogation and presentation effective for the ascertainment of the truth”).

Recently, the Supreme Court addressed the issue and admonished trial judges not to allow their questioning of witnesses to cross the line between inquiry and advocacy. State v. Taffaro, 195 N.J. 442, 451 (2008). Especially in cases tried before juries, judges must show restraint in questioning witnesses so that they do not suggest a belief or disbelief in the testimony. Ibid. The Court also observed, however, that concerns about influencing juries by intrusive questioning “are less acute in the context of bench trials, where judges serve as fact finders and have more latitude.” Ibid.

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