Litigants Beware: The Inquisitorial Judge and the Obligation to Object

WDC Journal Edition: Spring 2007
By: Molly J. Zillig, Esq. - Milwaukee County Corporation Counsel

In Wisconsin, like the majority of jurisdictions, trial judges have the power to directly interrogate witnesses in order to promote the ultimate goal of discovering the truth. Wisconsin Stat. § 906.14 is titled “Calling and Interrogation of Witnesses by Judge.” It provides as follows:

(1) CALLING BY JUDGE. The judge may, on the judge’s own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross examine witnesses thus called.

(2) INTERROGATION BY JUDGE. The judge may interrogate witnesses, whether called by the judge or by a party.

(3) OBJECTIONS. Objections to the calling of witnesses by the judge or to interrogation

by the judge may be made at the time or at the next available opportunity when the jury is not present. [1]

Likewise, Rule 614(b) of the Federal Rules of Evidence authorizes trial courts to question witnesses.[2] Case law in Wisconsin is replete with instances where a judge has engaged in the direct questioning of witnesses. This case law uniformly holds that such questioning is allowed when the questions will promote the interest of justice and as long as the court remains impartial during the questioning.[3] Although § 906.14(1) and (2) contain no explicit limitations on the power of a judge to call and interrogate witnesses, limitations are implied by Wisconsin court decisions: “It is expected that this authority will be used only in the exceptional case.”[4]

For obvious reasons, § 906.14(3) and the corresponding case law that has addressed the application of that statute provide for objecting to the interrogation of a witness by the judge.

Wisconsin Stat. § 906.14(3) provides:

(3) OBJECTIONS. Objections to the calling of witnesses by the judge or to the

interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.[5]

When necessary to the successful defense or prosecution of your case, it is imperative that you make an objection when a judge does call a witness to the stand or to the interrogation of a witness by a judge. A litigant can either object to the judge’s decision to call the witness to the stand or to the judge’s particular line of inquiry. Based on the reasoning in State v. Carprue, it is clear that should a litigant fail to make a timely objection, he or she waives his or her right to object to the judge’s actions on appeal.

In Carprue, the defendant’s conviction was reversed by the Wisconsin Court of Appeals. The defendant claimed that the trial court judge surrendered her impartiality by siding with the prosecution during trial. Although the Wisconsin Supreme Court stated that the judge’s conduct was “inadvisable,” the supreme court held that the judge’s behavior was insufficient for reversal and reinstated the conviction.[6] In Carprue, the defendant did not object to the judge’s calling and questioning of a witness. The supreme court stated that it was “disinclined to overlook the defendant’s failure to timely object” because of, (among other reasons) the role objections play in correcting a wayward trial judge.[7]

The court, however, was forced to analyze the judge’s conduct in the case under an “ineffective assistance of counsel” claim because of trial counsel’s failure to object. After such review, the court concluded that no prejudice was demonstrated because all potentially objectionable behavior occurred outside the jury’s presence and other potentially prejudicial information was never disclosed to the jury.[8] The supreme court further ruled that there was no recognized ground for judicial bias. As Carprue and prior cases make clear, timely objections promote efficient judicial administration by encouraging parties and courts to correct or avoid errors at trial.[9] Finally, the waiver rule “diminishes any strategic incentive to induce error in order to gain access to appellate review.”[10] Further and most important, even where a timely objection fails to correct error, it creates a record that facilitates appellate review.[11]

Wisconsin Stat. § 906.14(3) provides that the objection to the interrogation can be made at the time the interrogation occurs or at the next available time when the jury is not present. The best practice is to request a side bar with the judge to voice your objection. That way, any potentially biased comments from the judge related to the objection will be made away from the jury. Litigants may want to consider crafting a jury instruction to supplement Wis. JI-Civil 115 and 120 that would specifically instruct the jurors that pursuant to Wisconsin Statute, it is within the court’s discretion to question a witness and counsel has a right to object to the questioning should counsel choose to do so. The instruction could also state that any sort of colloquy out of the presence of the jury, or comments made in front of the jurors should not influence them. A more specific jury instruction regarding the above may be useful on plain error review when a party does fail to object.

Molly J. Zillig is a Principal Assistant with the Milwaukee County Corporation Counsel’s Office.

[1] See Wis. Stat. § 906.14 (2005-06)

[2] Fed. R. Evid. 614(b)

[3] State v. Asfoor, 75 Wis. 2d 411, 437, 249 N.W.2d 529 (1977); Komp v. State, 129 Wis. 2d 24, 108 N.W. 46 (1906)

[4] State v. Carprue, 2004 WI III., ¶33, 274 Wis. 2d 656, 683 N.W.2d 31

[5] Wis. Stat. § 906.14(3)

[6] Carprue, 274 Wis. 2d 656, ¶3, 683 N.W.2d 31

[7] Id. at ¶¶42-46

[8] Id . at ¶50

[9] Id. at ¶37

[10] Id

[11] Id