10

I came across a courtroom exchange on twitter

Adv: I ask this question.

J. CT Ravikumar: Who are you asking the question to?

Adv: To the #SupremeCourt

J. Shah: You cannot ask us questions. You can say 'I ask myself'. That's okay. Only we have that prerogative - to put questions to you.

As seen in the responses below, to the general public, this comes across as highhandedness.

Let's assume the lawyer is a newcomer still getting used to the system. What I'd like to know:

  1. Would judges in the courts of developed countries like USA, UK, France, Germany, etc. give similar instructions in their own courts? Or is this phenomenon, let's say, "uniquely Indian"?
  2. If so, what would be the reason a lawyer can't ask a judge questions?
3
  • 10
    it's crucial that this is a supreme court hearing. As in, this is an inquisitional trial, not a normal common law or jury one!
    – Trish
    Commented Jan 2, 2023 at 15:19
  • 6
    Context is everything. I'm sure the court wouldn't mind as a preliminary matter being asked which table in the courtroom counsel for a third-party defendant in a case should sit at, or if the court would prefer to have exhibits in electronic or paper form. Judges are only rarely a source of evidence (except via a request to take judicial notice) and rarely set forth the law in advance of hearing the evidence. Without knowing the nature of the question and the nature of the hearing, it is impossible to know.
    – ohwilleke
    Commented Jan 2, 2023 at 22:18
  • 3
    @ohwilleke Good point. There is probably a grey area where "procedural" questions veer into "substantial" questions, e.g. might reveal which side the judges are leaning etc. Commented Jan 4, 2023 at 10:47

3 Answers 3

22

The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems.

The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge).

The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to "make a case". The "court of public opinion" may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court.

In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.

3
  • 3
    Even in an inquisitorial system, you simply can't ask the judge questions outside of a formal request.
    – Trish
    Commented Jan 2, 2023 at 18:32
  • 3
    I'm not sure why we should exclude civil law jurisdictions. One should not be naive about it, and the fact should be made clear if there is any difference, sure. But it is often illuminating to compare different systems. Commented Jan 4, 2023 at 11:00
  • The reason is that the question is about a view expressed by a justice of the Supreme Court in a common law jurisdiction.
    – user6726
    Commented Jan 4, 2023 at 16:00
9

Yes, in the appropriate way

In essence, every trial is a question - guilty or not guilty, for the plaintiff or the defendant, or for the applicant or the respondent - so all trials ask a question of the court.

Similarly, raising an objection is asking a question of the judge.

Also, there are many administrative and procedural questions that the advocates have to ask the judge (and each other) simply to ensure the trial works. For example, “witness A has had to have their wisdom teeth extracted, is it ok if we move them from tomorrow to next Thursday?” Those types of questions are fine.

However, you can’t ask a question of the judge while you are making a statement to the court explaining your position. That’s not appropriate. And, typically, the higher you go in the court hierarchy, the less tolerance there is for inappropriate behaviour, particularly from advocates that should know better.

7
  • 3
    "Your Honor, will my client be acquitted if I say he's innocent?"
    – PMF
    Commented Jan 3, 2023 at 14:40
  • 1
    I suppose that the judges would simply reflect such questions back to the lawyer or attorney: "Your honor, we have produced ample evidence that my client is innocent. Do you agree that we don't need to drag on with the questioning of the witness?" "The witness is yours as long as you need him." Commented Jan 4, 2023 at 10:56
  • @Peter-ReinstateMonica: Would there be an appropriate means for one party's counsel to ask that of the other party to stipulate to facts which could be proven with certainty by adequately questioning a witness, but about which there probably shouldn't be much room for doubt anyway?
    – supercat
    Commented Jan 4, 2023 at 20:54
  • @supercat Prosecution and defense strike deals all the time in the U.S. court system. Not sure whether that could be brokered during the trial or must be negotiated outside of it in the back offices. Not sure how that works in Germany at all. Commented Jan 4, 2023 at 21:24
  • @supercat parties in a court case invariably submit a joint statement of facts - things they agree to without needing to submit evidence about them.
    – Dale M
    Commented Jan 4, 2023 at 22:24
3

In Germany, the Strafprozessordnung (criminal proceedings regulations) specifies:

§ 240 Fragerecht

(1) Der Vorsitzende hat den beisitzenden Richtern auf Verlangen zu gestatten, Fragen an den Angeklagten, die Zeugen und die Sachverständigen zu stellen.

(2) Dasselbe hat der Vorsitzende der Staatsanwaltschaft, dem Angeklagten und dem Verteidiger sowie den Schöffen zu gestatten. [...]

To paraphrase, the presiding judge has to permit (substantial) questions (only) to the accused, the witnesses, and the experts.

This concerns formal questions within the actual trial; I must assume that people are generally free to talk to each other, including questioning each other, outside the actual sessions.

Some communication external to the actual trial may be inappropriate though and might compromise the trial when detected. In the docudrama Stammheim about the contentious criminal trial against the German radical left terrorist group RAF, there is a scene in which the presiding judge calls a member of the defense team to discuss a challenge on the grounds of bias. The lawyer is highly apprehensive when he realizes who is calling. He clearly finds the call inappropriate.

6
  • Do note that actual questions in this manner are about the contents of the case and handled separately from formal inquiries about the handling of the case - which are allowable and often formulated in question format, as in "Could we take a break for 20 minutes? I need to get a file from the porter." While formulated as a question, they fall under an "Antrag" to the court, who can decide and dictate the termination under StPO § 213. ZPO § 227 is similar for civil suits. In both, the judge is called to try to make the scheduling agreeable with all parties but can overwrite their inquerries.
    – Trish
    Commented Jan 4, 2023 at 12:19
  • in other words: Fragerecht is all about substantial questions, not procedual ones.
    – Trish
    Commented Jan 4, 2023 at 12:20
  • @Trish Well, it doesn't explicitly say so; but the paragraph appears in the context of main trials and witness questioning, so we can assume it is about actual (i.e., substantial) questioning. As I said elsewhere, there is probably a grey zone between the two. Commented Jan 4, 2023 at 12:25
  • indeed, and most judges won't smack you over the head if you ask them something that isn't per-se inappropriate.
    – Trish
    Commented Jan 4, 2023 at 12:28
  • 1
    @Trish That said, any actual request may be preceded by some discussion or probing which may include actual (linguistic) questions, e.g. "would the court consider adjourning if we cannot conclude the questioning before 10 PM?"), and I suppose that kind of question is entirely appropriate. Commented Jan 4, 2023 at 12:37

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .