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Psychology, Crime & Law
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Objection, your Honour: examining the
questioning practices of Canadian judges
Christopher J. Lively, Laura Fallon, Brent Snook & Weyam Fahmy
To cite this article: Christopher J. Lively, Laura Fallon, Brent Snook & Weyam Fahmy (2022):
Objection, your Honour: examining the questioning practices of Canadian judges, Psychology,
Crime & Law, DOI: 10.1080/1068316X.2022.2030737
To link to this article: https://doi.org/10.1080/1068316X.2022.2030737
Published online: 31 Jan 2022.
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Objection, your Honour: examining the questioning practices
of Canadian judges
Christopher J. Lively
a,b
*, Laura Fallon
b
, Brent Snook
b
and Weyam Fahmy
b
a
Department of Psychology, St. Francis Xavier University, Antigonish, NS, Canada;
b
Department of
Psychology, Memorial University of Newfoundland, St. Johns, NL, Canada
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 dierent judges across 22 criminal
cases (169 witness examinations) were classied 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 clarication (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.
ARTICLE HISTORY
Received 14 June 2020
Accepted 10 December 2021
KEYWORDS
Courtroom questioning;
questioning practices;
judiciary; judges; truth-
seeking
Information and evidence obtained from human sources through questioning is critical
for the truth-seeking function of the criminal justice system. In a criminal investigation,
police ocers question witnesses to nd new leads, acquire evidence, and locate perpe-
trators. When the case goes to trial, lawyers question witnesses to check evidence
reliability and ensure due process. In court, judges question witnesses to clarify ambigu-
ities and gather additional information that is thought to be relevant for making the ulti-
mate decision. Although police ocers, lawyers, and judges serve dierent roles, there is
uniformity in the need to ensure that the information and evidence used to make conse-
quential decisions are accurate. Research has shown that police ocers (Snook et al.,
2012; Wright & Alison, 2004) and lawyers (Kebbell et al., 2003,2004; Lively et al., 2020)
© 2022 Informa UK Limited, trading as Taylor & Francis Group
CONTACT Christopher J. Lively clively@stfx.ca Department of Psychology, St. Francis Xavier University, 2323
Notre Dame Avenue, B2G 2W5, Antigonish, NS, Canada
*This research has been presented, in part, at the 4th North American Correctional and Criminal Justice Psychology Con-
ference, (Halifax, NS, Canada).
PSYCHOLOGY, CRIME & LAW
https://doi.org/10.1080/1068316X.2022.2030737
do not always ask questions that inoculate witnesses against the frailties of memory (e.g.
by asking leading questions). Little research has examined the extent to which judges
the gatekeepers of evidence adhere to best questioning practices. Thus, the aim of the
current study was to conduct a descriptive analysis of judicial questioning practices in the
Canadian legal system.
It is well-documented that the way questions are phrased impacts the quantity and
quality of the elicited information. A plethora of research has shown that question
types that encourage respondents to recall information freely are the best way to
obtain accurate and complete information (e.g. Cliord & George, 1996; Davies et al.,
2000; Loftus & Palmer, 1974; Memon et al., 1994,2003; Memon & Vartoukian, 1996;
Milne & Bull, 2003; Read et al., 2009; Shepherd, 2007). Specically, an open-ended question
(i.e. those that start with tell,explain,ordescribe; Fisher & Geiselman, 1992; Griths &
Milne, 2006; Milne & Bull, 2003; but see Farrugia & Gabbert, 2020, for ndings relating
to the challenges of asking such questions to individuals with learning disabilities or
mental health issues) allows respondents to have complete control over the information
provision process, which can lead to the provision of unanticipated information and
reduces the likelihood that the respondents account will be tainted by the phrasing of
the question. Open-ended invitations have been shown to generate more information
than all other question types (Lively et al., 2020; Milne & Bull, 2003; Snook et al., 2012).
Aprobing question (i.e. those that start with who,what,when,where,why, and how)is
a second type of question that allows respondents to engage in cued recall, encourages
them to provide information beyond what was recalled in response to open-ended ques-
tions, and is less likely to contaminate provided information due to the phrasing of the
question (Griths & Milne, 2006).
There is also general scientic consensus that certain question types limit the ability to
gather complete information and interfere with the accuracy of the information that is
gathered (Fisher, 1995; Oxburgh et al., 2010). Specically, closed yes/no questions
request a response in only a yes or no format, thus limiting the amount of information
provided by the respondent or the discovery of unanticipated information (Fisher & Gei-
selman, 1992). Forced-choice questions provide the respondent with a few select options
often two to choose from for their response; these questions limit the responses avail-
able and may lead to inaccurate information because of the available choice options
(i.e. the factually correct option may not be present; Fritzley & Lee, 2003). Asking multiple
questions simultaneously can result in confusion on the part of the respondent when
deciding which question to respond to rst. Furthermore, if an answer is attempted, it
may not always be clear which question the answer is paired with, although some
research suggests that the last question asked is typically the question that the respon-
dent answers rst (Kebbell & Johnson, 2000; Perry et al., 1995). Leading questions are
those that directly suggest or imply a specic response normally the response that
the questioner wishes to receive, whether or not it is correct and have the potential
to alter an individuals memory for an event through the introduction of post-event mis-
information (e.g. Cliord & George, 1996; Loftus & Palmer, 1974; Loftus & Zanni, 1975; see
Loftus, 2005, for a review). Aside from the detrimental impact that such questions have on
the quality of provided information, responses to these types of questions are also rela-
tively shorter than those elicited using open-ended and probing questions (Lively et al.,
2020; Snook et al., 2012).
2C. J. LIVELY ET AL.
There are also various other types of questions and utterances for which the nature of
the impact on the information gathering process is less clear. One of these types, which
has been operationalized in various studies on questioning practices, is the clarication
question (Griths & Milne, 2006; Milne & Bull, 2003; Oxburgh et al., 2010; Snook et al.,
2012). Clarication questions, which could also be described as follow up questions,
aim to enhance comprehension of previously provided information (Oxburgh et al.,
2010). However, some researchers suggest that rather than clarifying as the interview pro-
gresses, it may be better to summarize all provided information and clarify issues at the
end of a series of questions (Fisher & Geiselman, 1992; Milne & Bull, 2003; see Altmann
et al., 2014). Another type of question is the re-asked question, which refers to asking
the same question repeatedly, presumably as a result of not receiving what is perceived
to be a satisfactory answer. Although it is not formally established as a question type
based on the existing literature, some researchers have found that re-asking questions
induces the respondent to alter their previous response to the initially asked question
(Brock et al., 1999; Gilbert & Fisher, 2006; Henkel, 2014; Poole & White, 1991), and
others have found that it results in extracting additional information from the respondent
(Scrivner & Safer, 1988; Turtle & Yuille, 1994). Re-asked questions dier from clarication
questions in that the question is not being asked again to ensure understanding, but
rather for some other purpose (e.g. in the courtroom, a lawyer may re-ask a question
for eect if the response was pivotal to their case; in a police interview, an ocer may
re-ask a question because they are not satised with the respondents previous answer).
Other types of non-question utterances used in information-gathering interviews that
have not been extensively studied include opinions,commands, statements, and facili-
tators. Opinions involve the questioner providing their personal beliefs or viewpoints
and could potentially induce the respondent to integrate this information into their
response (Lively et al., 2020). Commands simply occur when the questioner requests
that the respondent do something (e.g. Speak louder; Lively et al., 2020). Statements
refer to any declaration of fact that is not in the form of a question (Lively et al.,
2020; Snook et al., 2012). Facilitators are verbal indicators or encouragements uttered
during the interview (e.g. mhm,okay) and could be considered either detrimental
or benecial to the memory retrieval process depending on the context (Oxburgh
et al., 2010; see Table 1 for examples of each of the aforementioned question and utter-
ance types).
Witnesses often rst provide information about criminal activity to the police. To
ensure that a complete and accurate account is obtained, police interviewers are encour-
aged to avoid using question types that diminish the amount of information recalled by a
witness or contaminate a witnessmemory of what transpired. Research has shown that
police ocers especially those that are not trained in proper interviewing practices
tend to ask questions that reduce memory performance more than those that enhance
it (e.g. Cliord & George, 1996; Davies et al., 2000; Fisher et al., 1987; Myklebust &
Alison, 2000; Snook et al., 2012; Snook & Keating, 2011; Walsh & Milne, 2008; Wright &
Alison, 2004). Such research has raised concerns about the quantity and quality of infor-
mation being gathered for investigative purposes; it is those same concerns that lead
lawyers to challenge police interview evidence in court, and sometimes go as far as
arguing that poor interviewing practices are a form of negligence (see e.g. Hill
v. Hamilton-Wentworth Regional Police Services Board,2007). Challenging the quality of
PSYCHOLOGY, CRIME & LAW 3
police evidence because of the way it was obtained can lead to dismissal of said evidence
and impact judicial decisions.
An emerging body of evidence also suggests that lawyersquestioning practices to
witnesses are sometimes substandard. Specically, research has shown that lawyers
tend to ask questions that may be interfering with information and evidence gathering
(e.g. closed yes/no) at a much higher rate than questions that improve that process (e.g.
open-ended; Kebbell et al., 2003,2004; Lively et al., 2020; Zajac & Cannan, 2009; see also
Zajac et al., 2018, for an examination of the changes to courtroom questioning practices
for child witnesses). Research has also shown that lawyersquestioning practices are par-
ticularly problematic during cross examinations (vs. direct examinations; Kebbell et al.,
2003,2004) and when the questioner is a defense attorney (vs. prosecutor; Zajac &
Cannan, 2009; but cf. Lively et al., 2020). This is concerning given that such question
styles have been shown to confuse witnesses and impair their ability to provide com-
plete and accurate accounts (see Wheatcroft et al., 2004; also see Ellison & Wheatcroft,
Table 1. Descriptions and examples of utterance types coded.
Utterance Type and Description Example
Open-ended
Invites witness to recall answers freely from memory.
Tell me about the party you attended.
Probing
Invites witness to recall answers from memory using
cued recall.
When did you rst notice the ght?
Closed yes/no
Tap into witnessrecognition memory, and typically
answered with a yesor noresponse.
Did you drink alcohol?
Forced-choice
Oers the witness a limited number of response
options.
Did you kick or punch the man?
Multiple
Many questions simultaneously without giving the
witness a chance to respond.
How many people were at the party? Did you know anyone
there? How much did you drink at the party?
Leading
Suggests/implies a desired answer to witness
embedded in question.
You were drunk, right?
Re-asked
Repeating a question previously asked and answered.
Judge: What happened to the cell phone?Witness: I cannot
remember.
Judge: Come on now, what happened to the phone?(re-
asked utterance emphasized)
Clarication
Duplicating or paraphrasing the answer that the
witness has given back as a question.
Witness: John said he went to a party.
Judge: Okay, so John went to a party?(clarication utterance
emphasized)
Opinion
Providing a personal belief related to the allegations
before the court.
I think you assaulted Kirk when you saw him.
Command
Giving a directive or telling the witness to do
something.
Speak up, please
Statement
A declaration of fact not in the form of a question.
That water is there for you, Mr. Barron
Facilitator
Verbal gestures that encourages the ow of
conversation.
Um-hmm,Yes,Okay
Incomplete
Utterance is interrupted or cut oby another speaker
or witness.
Also applied when utterances are transcribed as
(inaudible)or (unintelligible)in transcript.
So how often would you –’
4C. J. LIVELY ET AL.
2010 on the impact of courtroom questioning and pre-trial preparation on testimony
accuracy).
Collectively, the research literature on how police ocers and lawyers ask questions
demonstrates that, broadly, the quality and quantity of evidence and information that
is being used by triers of fact to make consequential decisions is not as high as it could
be (e.g. Kebbell et al., 2003,2004; Lively et al., 2020; Snook et al., 2012; Snook &
Keating, 2011). It is worth noting that, on the surface, these two witness-questioning con-
texts are distinct because courtroom examinations have a dierent purpose than do
police interviews. However, both police ocers and lawyers are seeking the truth and
engaging in the same task of extracting information from human memory, and when
necessary, challenging those recollections. Furthermore, the process that is used to
extract that information from witnesses is the same in both settings, the information
and evidence are gathered through asking questions. What is more, the questioning prac-
tices of both police ocers and lawyers are subject to scrutiny by the same courtroom
authority the judge.
If the fairness of a trial is at risk, a judge is expected to mitigate concerns in an impartial
manner (Pound, 1959). This judicial duty extends to situations where improper questions
are posed to witnesses, either by a police ocer prior to the trial, or by a lawyer at trial
(Pattenden, 1990). When police ocers ask inappropriate questions, a voir dire can be
held to determine whether or not statements should be admitted into court as evidence
(Pearse & Gudjonsson, 1999). The remedy for inappropriate lawyer questioning, in con-
trast, will often come in the form of judges addressing the other parties in the courtroom.
For instance, judges will address the jury to prevent questions from misleading them and
will also interact with the lawyers to ask them to simplify their questioning style, ensure
the witnessesunderstanding, clarify their questions, or tell them to avoid oppressing the
witness (OKelly et al., 2003). In short, the judge is deemed the authority when it comes to
governing the questioning practices of the other legal professionals in the courtroom.
It is important to note that in adversarial systems, judges are never the primary ques-
tioners in a criminal bench trial, but that they do sometimes intervene by questioning the
witness directly. Judges may also intervene in order to simplify a question that was asked
previously by a lawyer, give the witness advice or direction, or ask questions that were not
asked by the lawyer(s) (OKelly et al., 2003). Judges sometimes ask questions to a witness
during direct and cross examinations, or perform their own examination of the witness;
this is, in Canada for example, referred to as an examination per curium (Rules of the
Supreme Court of Canada, 2002).
1
While the questioning by judges is an important com-
ponent of the criminal justice process, it is unclear whether or not their questioning prac-
tices achieve the standards of best practice (to which police ocers and lawyers might be
expected to adhere). If judicial questioning is substandard, it would impact the quantity
and quality of information collected during a trial. This may also suggest that judges
knowledge of the eect of questioning practices on evidence quality is also substandard,
which could impact other consequential decisions (e.g., statement voluntariness).
Although there is a dearth of research on how judges ask questions, there is some evi-
dence to suggest judicial ideologies can aect their questioning practices. For instance,
Tracy and Parks (2012) analyzed transcripts of court cases dealing with same-sex marriage
issues and found that judges who were in support of same-sex marriage tended to ask
harsher questions to state attorneys (i.e. those arguing against the practice). They also
PSYCHOLOGY, CRIME & LAW 5
found that judges who wereagainst same-sex marriage asked harsher questions the plain-
tis attorneys (i.e. those arguing in favor of the practice; also see Tracy, 2016). Further-
more, Philips (1998) purported that judges with a more liberal ideology tend to ask
more open-ended questions, whereas more conservative-leaning judges asked more
closed-ended questions. There is also research demonstrating that, in areas other than
courtroom questioning, judges can be inuenced by external factors and may stray
from best practice. For instance, when dealing with the angle of the camera in a
suspect interview (Lassiter et al., 2007), the impact of coercion on sentencing decisions
(Wallace & Kassin, 2012), disregarding inadmissible evidence (Wistrich et al., 2005), and
letting cognitive illusions inuence decisions (e.g. anchoring, hindsight bias; Guthrie
et al., 2002), it seems that expertise does not protect judges from falling victim to the
biases that plague laypeople. These ndings, combined with the previous work demon-
strating that other actors in the justice system (i.e. police ocers, lawyers) fail to adhere to
questioning best practices, suggest that a new line of research examining judgesques-
tioning practices is warranted.
The current study
The goal of the current study was to examine the question types that judges use when
questioning witnesses. Using archival data from the Supreme Court of Newfoundland
and Labrador in St. Johns, NL, Canada, a sample of utterances spoken by judges to
adult witnesses was coded for the type of utterance spoken. Similar to the approaches
used by Kebbell et al. (2003,2004) and Lively et al. (2020), the current study also aimed
to specically explore how questions asked by judges in the courtroom change as a
function of examination type. An extensive body of literature indicates that police
ocers and lawyers tend to use ineectual question types more frequently than
eective ones; more specically, research shows that productive types of questions
such as open-ended questions are used much less than unproductive questions, and
are rarely used overall (less than 5% of all questions asked; see Lively et al., 2020;
Snook & Keating, 2011; Wright & Alison, 2004; Zajac & Cannan, 2009). Much of this pre-
vious research has also found that asking eective questions (i.e. open-ended, probing)
produces more information from witnesses (e.g. Kebbell et al., 2004; Lively et al., 2020;
Snook et al., 2012). Thus, based on the aforementioned literature, we made the follow-
ing predictions:
Hypothesis 1: Open-ended questions will be asked infrequently to witnesses.
Hypothesis 2: Unproductive questions (i.e. closed yes/no, forced choice, multiple, leading) will
be asked more frequently to witnesses than productive questions (i.e. open-ended, probing).
Hypothesis 3: Productive questions (i.e. open-ended, probing) will produce the longest
witness responses, whereas unproductive questions (e.g. closed yes/no, forced-choice, mul-
tiple, leading) will produce the shortest witness responses.
Given that judges are meant remain impartial, regardless of the type of examination being
conducted and that no previous research has examined judicial questioning as a function
of examination type, we refrained from making predictions about the impact of examin-
ation type on the types of questions asked by judges.
6C. J. LIVELY ET AL.
Method
Sample
A convenience sample of 22 courtroom transcripts were obtained from the Supreme
Court of Newfoundland and Labrador in St. Johns, NL, Canada. All were criminal cases
heard at the Supreme Court of Newfoundland and Labrador between 1991 and 2015,
and involved a wide range of crimes (see Table 2). A total of 15 dierent judges presided
over the cases; seven of those judges presided over two cases each. Fourteen (93.33%) of
the judges were men.
A total of 169 witness examinations were extracted from the 22 cases. On average, 7.68
(SD = 4.65, Range =219) examinations were extracted from a single court case. Across all
cases, 81 dierent witnesses were examined on the witness stand; seventy-eight (96.30%)
of these witnesses underwent a direct examination (i.e. conducted by the lawyer who
called the witness to the stand), 73 (90.12%) underwent a cross examination (i.e. con-
ducted by the opposing lawyer), and 18 (22.22%) underwent an examination per
curium (i.e. conducted by the judge). In terms of witness type, 32 (39.51%) were eyewit-
nesses, 26 (32.10%) were police ocers, 13 (16.05%) were the accused, eight (9.88%) were
victims, one (1.23%) was an expert witness, and one (1.23%) was a character witness. Fifty-
one witnesses (62.96%) were men. The mean number of examinations conducted by each
of the 15 judges was 11.27 (SD = 6.63, Range =224).
Design and coding
The current research consisted of an analysis of archived courtroom transcripts using a
quasi-experimental design. The objectives of the current research were to provide a
descriptive analysis of the type of utterances spoken by judges to witnesses, and to
Table 2. Breakdown of cases by crime type (N= 22).
Crime Type
Frequency
(Total)
(Subtotal)
Drug-Related 6
Tracking 5
Production of a controlled substance 1
Assault-Related 5
Assault 2
Aggravated Assault 2
Assault with a Weapon 1
Sex-Related 4
Sexual Assault 3
Sexual Interference 1
Firearms-Related 2
Unlawfully Discharging a Firearm 1
Pointing a Firearm 1
Motor-Vehicle Related 2
Dangerous Operation of a Motor Vehicle 1
Impaired Driving 1
Homicide 1
Unknown Crime Type*2
Note. * = Two cases did not provide sucient details within the available court transcripts to be able to classify the type
of oences being tried before the court.
PSYCHOLOGY, CRIME & LAW 7
examine the extent to which utterances vary as a function of examination type (i.e. direct
examination, cross examination, examination per curium). To achieve these objectives, a 16-
item coding guide and associated content dictionary was author-constructed (based on the
previous works of Kebbell et al., 2003,2004; Lively et al., 2020; Snook et al., 2012; Zajac &
Cannan, 2009; a copy of this coding guide can be obtained by visiting https://osf.io/
n67fz/?view_only = ecf50407e8dc472ca44d7696279444e7). The following ve trial/demo-
graphic variables were coded: judge gender (1 = male,2=female), examination type (1 =
direct,2=cross, 3=per curium), witness type (1 = victim,2=eyewitness,3=police ocer,4
=accused,5=character,6=expert), witness gender (1 = male,2=female), and the year that
the trial took place. Every utterance spoken by a judge in each examination was assigned an
identication number and classied as having one of three purpose types: case focused (i.e.
utterances asked or directed to the witness about facts of the case), administrative in nature
(i.e. utterances asked or directed to the lawyers about procedure), or having an unknown
purpose (i.e. used for facilitators and incomplete utterances); utterances classied as having
an unknown purpose were also sub-classied into whether they were spoken to a witness
or to another courtroom player (e.g. lawyer, courtroom clerk). Only utterances spoken by a
judge when the witness was testifying on the stand were coded mutually exclusively as one
of 13 utterance types. A breakdown of the coding classication system is shown in Table 1.
The total number of words spoken by judges and witnesses were calculated by using the
word count feature in Microsoft Word 2016.
Inter-rater reliability
Coding of all 169 examinations was shared among three of the authors. The rst and
second authors coded 126 examinations; the second and fourth authors coded 22 exam-
inations; and the rst and fourth authors coded 21 examinations. The rst author provided
training on the coding guide and dictionary to the second and fourth authors. Any con-
fusion or questions pertaining to the coding guide and dictionary were discussed and
resolved during training. After training, all coders practiced coding on a set of courtroom
examinations not included in the current sample. It should be noted that two of the
coders (second and fourth authors) did not join the project as contributing authors
until after the coding and data analysis were conducted, and thus they were not aware
of the hypotheses during the coding process.
Reliability of the data were measured by collapsing across coders and calculating an
overall Cohens kappa (κ) value (Cohen, 1960). As a result, substantial inter-rater agreement
was achieved for classication of both utterance type (Cohensκ= .69; 95% CI = .68, .71) and
purpose type (Cohensκ= .81; 95% CI = .80, .83). Inter-rater agreement was high for
decisions regarding whether the facilitators/incomplete utterances (i.e. utterances
labeled as purpose unknown) were spoken to witnesses versus other courtroom persons
(Cohensκ= .98; 95% CI = .97, .99; Cohen, 1960; Landis & Koch, 1977). After reliability was
calculated, disagreements were resolved through discussion between all three raters.
Data analytic plan
For our analyses, we quantied judgesutterances as a proportion (i.e. mean percent) of
utterances spoken during each witness examination (Kebbell et al., 2003,2004; Lively
8C. J. LIVELY ET AL.
et al., 2020; Snook et al., 2012; Zajac & Cannan, 2009). Frequency analyses were conducted
to determine the number of unique utterances. Descriptive analyses of the proportion of
utterance types were conducted for utterance types overall, for utterance types spoken to
witnesses only, and also as a function of examination type (i.e. direct examination, cross
examination, or examination per curium). Our main analyses applied a multivariate analy-
sis of variance test, using each unique utterance type (i.e. dependent variable) to examine
for any dierences as a function of examination type (i.e. independent variable). Mean
word length for each utterance type spoken by a judge was calculated and compared
to the length of all other utterance types; mean word length was also calculated for all
witness responses and compared to the length of responses for all other utterance types.
We chose to express the magnitude of any signicant dierences found (i.e. eect
sizes) as Cohensd(Cohen, 1988). Cohensdis used to determine if comparative results
have meaningful dierences. For ease of interpretation, Cohen proposed four levels of
eect sizes: no eect (d0.19; no practical signicance); a small eect (0.20 d0.49;
low practical signicance); a medium eect (0.50 d0.79; moderate practical signi-
cance); and a large eect (d0.80; high practical signicance).
Results
Across 169 witness examinations, 3,140 utterances spoken by a judge were coded.
Overall, the average number of utterances spoken by a judge per examination was
18.57 (SD = 28.88, Range =1191, 95% CI = 14.19, 22.96). The distribution of the overall
utterance types is shown in Figure 1. As can be seen, the most common utterance type
spoken overall, on average, was commands (M= 29.45, SD = 30.91), followed by state-
ments (M= 21.98, SD = 21.02) and clarication questions (M= 14.75, SD = 17.81). Collec-
tively, open-ended and probing questions accounted for fewer than 5% of all
utterances spoken.
Since our main interest pertained to how judges questioned witnesses, a total of 1,644
utterances were removed because they were directed to other individuals (e.g. lawyers or
courtroom clerk). As a result, 1,496 utterances remained that were spoken directly to the
witnesses, which corresponded to 20 cases, and 113 witness examinations; all 15 judges
were retained.
Utterance type
The distribution of the utterance types spoken to witnesses only is displayed in Figure 2.
As can be seen, the most common utterance type spoken to witnesses, on average, was
clarication questions (M= 36.63, SD = 29.95), followed by facilitators (M= 16.76, SD =
24.65); one judge did not ask any clarication questions and all judges uttered at least
one facilitator. Closed yes/no questions comprised 9.95% of all utterance types (SD =
14.39); four judges did not ask any closed yes/no questions. Forced-choice questions com-
prised 1.40% of all utterance types (SD = 5.63); ve judges did not ask any forced-choice
questions. Multiple questions comprised 3.15% of all utterance types (SD = 7.87); ve
judges did not ask multiple questions. Leading questions comprised 7.61% of all utter-
ance types (SD = 14.42); three judges did not ask any leading questions. Collectively,
less than 10% of utterances spoken to witnesses-only were open-ended (M= 0.06,
PSYCHOLOGY, CRIME & LAW 9
SD = 0.51) and probing (M= 8.35, SD = 14.52) questions; thirteen judges did not ask any
open-ended questions, and four judges did not ask any probing questions. Taken
together, the aforesaid results illustrate that open-ended questions were asked infre-
quently, rendering support for Hypothesis 1, and unproductive questions were asked
more frequently than productive questions, rendering support for Hypothesis 2.
When analyzed across examination type, 886 (59.22%) of the utterances spoken to wit-
nesses occurred during a direct examination, 366 (24.47%) occurred during a cross exam-
ination, and the remaining 244 (16.31%) occurred during an examination per curium.
Direct examinations contained, on average, 16.72 (SD = 27.41, 95% CI = 9.16, 24.27) utter-
ances spoken to witnesses, cross examinations contained, on average, 8.71 (SD = 13.59,
95% CI = 4.48, 12.95) utterances, and examinations per curium contained, on average,
13.56 (SD = 12.58, 95% CI = 7.30, 19.81) utterances; a one-way analysis of variance revealed
Figure 1. Mean overall percentage of utterance type and associated 95% condence intervals per
witness examination (N= 169).
10 C. J. LIVELY ET AL.
that there were no signicant dierences in the number of utterances spoken by judges
as a function of examination type, F(2, 110) = 1.675, p= .19, d
Range
= 0.130.37.
A multivariate analysis of variance using the proportion of all utterance types as the
dependent variables, and the examination type as the xed factor revealed signicant
dierences across examination type for closed yes/no questions, F(2, 110) = 13.842,
p< .001, and multiple questions, F(2, 110) = 3.406, p< .04. Specically, examinations
per curium contained more closed yes/no questions than both direct (d= 1.35) and
cross examinations (d= 1.21). Examinations per curium also contained a larger proportion
of multiple questions than both direct (d= 0.75) and cross examinations (d= 0.52). The
multivariate analysis of variance revealed no other signicant dierences across
Figure 2. Mean percentage of utterance type spoken to witnesses-only and associated 95% con-
dence intervals per witness examination (N= 113).
PSYCHOLOGY, CRIME & LAW 11
examination type for any of the remaining utterance types, all ps > .18, d
Range
= 0.010.50.
Descriptive data can be obtained by contacting the corresponding author.
Utterance and response lengths
Analysis of the length of judge utterances and witness response showed that multiple
questions contained, on average, the most words when spoken by a judge (M= 18.32,
SD = 12.29); this was followed by forced-choice questions (M= 16.85, SD = 14.30), and
statements (M= 15.47, SD = 16.16), respectively. Facilitators comprised the least number
of words (M= 1.2; SD = 0.63), followed by incomplete utterances (M= 6.56, SD = 7.27).
Judges used, on average, 10.00 (SD = 2.83) words when asking open-ended questions,
and 8.54 (SD = 6.76) words when asking probing questions. Leading questions contained,
on average, 11.60 (SD = 7.05) words.
In terms of witness response length, it was expected that productive questions, namely
open-ended and probing questions, would produce longer responses than unproductive
questions (Hypothesis 3). Open-ended questions resulted in the longest responses, with
an average of 53.50 (SD = 72.83) words per response. The second longest responses, on
average, occurred after facilitators were used (M= 24.74, SD = 47.96) and commands
were given (M= 19.17, SD = 29.02). Probing questions elicited, on average, 9.27 (SD =
12.03) words per response. The shortest replies were provided in response to opinions
(M= 3.33, SD = 1.16), followed by closed yes/no questions (M= 8.50, SD = 11.90), and
statements (M= 8.66, SD = 14.86). Witnessesresponses to leading questions were, on
average, 9.58 (SD = 22.05) words. Consequently, these ndings confer partial support of
Hypothesis 3.
2
Discussion
The goal of the current study was to examine how Canadian judges phrase questions to
witnesses on the stand. Our main nding was that judges use question types that are mis-
aligned with what is recommended for eliciting complete and accurate information from
witnesses anding that echoes similar research on the questioning practices of other
legal professionals (e.g. Lively et al., 2020; Snook et al., 2012). Although we found that
judges asked clarication questions most frequently to witnesses, they rarely asked
eective questions (i.e. open-ended and probing). Disconcertingly, judges used ineec-
tive question types (i.e. closed yes/no, forced-choice, multiple, and leading) almost
three times as often as eective question types. We also found that judges asked more
closed yes/no questions, and more multiple questions, in examinations per curium than
in both direct and cross examinations. Broadly, these ndings raise concerns that
judges, as the gatekeepers of the court, may not be protecting the integrity of the infor-
mation gathering process as well as one might expect, and may actually be contributing
to the degradation of witness evidence in some instances.
Utterance type
On a positive note, we found that judges asked clarifying questions more than twice as
often as any other question or utterance type. Such a nding was also expected
12 C. J. LIVELY ET AL.
because, unlike lawyers whose primary purpose in the courtroom is to question witnesses,
judges oversee the court as a whole and are not responsible for the main lines of ques-
tioning at least in adversarial court systems. Judges typically only interject when they
have procedural matters to address (e.g. matters related to adjourning a session, instruct-
ing the witness to answer a question or speak into the microphone) or when requesting
further information from the witness (OKelly et al., 2003). Thus, it makes sense that judges
would attempt to seek clarication frequently. To reiterate, seeking clarication is likely a
good practice because it can enhance comprehension of information previously provided
by the witness (Oxburgh et al., 2010), which may aid triers of fact in making a fair verdict.
However, it is worth cautioning that some researchers advocate for the clarifying of infor-
mation at the end of a witnesstestimony rather than throughout the questioning process
to avoid interrupting memory retrieval processes (e.g. Fisher & Geiselman, 1992; Milne &
Bull, 2003; see Altmann et al., 2014); thus, it is not entirely clear whether or not asking clar-
ication questions is always a positive practice.
Open-ended and probing questions accounted for less than 10% of all judicial utter-
ances spoken to witnesses. Specically, we observed that open-ended questions were
used very infrequently by judges (i.e. less than one percent of all witness-directed utter-
ances, a nding similar to that of studies examining questioning practices of other legal
professionals; e.g. Lively et al., 2020; Snook et al., 2012), thus, conrming support for
Hypothesis 1. These ndings are concerning because decades of research have demon-
strated that asking open-ended questions, along with follow-up probing questions, is
the optimal way of helping witnesses directly, and uninhibitedly, provide information
of their own volition (Fisher & Geiselman, 1992; Milne & Bull, 2003; Powell et al., 2005).
Moreover, inviting witnesses to provide information in an open manner protects the
questioner from tainting the reported information.
Judges used nearly three times as many ineective question types as eective question
types, thereby supporting Hypothesis 2. Closed yes/no question types were commonly
used, which is consistent with previous ndings on how police ocers and lawyers ask
questions (e.g. Lively et al., 2020; Snook et al., 2012; Snook & Keating, 2011;Wright&
Alison, 2004;Zajac&Cannan,2009). Surprisingly, the judges in our study asked leading
questions almost as frequently as closed yes/no questions, albeit both question types
uniquely made up less than 10% of all utterance types. Compared to the question types
used by lawyers (e.g. Lively et al., 2020), our sample of judges asked leading questions
less frequently. This is interesting considering that prior to being appointed to the
bench, all judges in Canada were once lawyers themselves. Initially, one might have
thought that the style of questioning practices as a lawyer would continue in a similar
pattern as a judge after all, training related to how to conduct a line of questioning in
the courtroom would be the same for both lawyers and judges. However, our data suggests
otherwise, at least for judges in this sample. Given that lawyers aim to encourage witnesses
to provide information that matches their account of events, it is to be expected that
lawyers would ask a higher proportion of leading questions than judges, who are expected
to be impartial and objective gatekeepers of due process. The dierence in the proportion
of leading questions may also be accounted for by the dierence between the amount of
questioning time allocated to the judge compared to lawyers. In other words, judges speak
much less frequently and when they do speak outside of examinations per curium,it
appears to only be for specic instances and for a short period of time.
PSYCHOLOGY, CRIME & LAW 13
Although caution should be used when comparing these groups due to contextual
dierences, it should be pointed out that judges asked leading questions more frequently
than police ocers (e.g. Snook et al., 2012;Snook&Keating,2011). This is somewhat per-
plexing, considering that some judges have lambasted police ocers for their inappropriate
use of such questioning practices, and have highlighted how such practices can lead to mis-
carriages of justice (e.g. false confessions). For example, specic recommendations from the
Report on the Prevention of Miscarriages of Justice (FPT Heads of Prosecutions Committee
Working Group, 2004) suggested that police ocers need to make greater eorts toward
preventing any contamination of witness evidence through unnecessarily communicating
privy information to the witness (i.e. recommendation 103; e.g. asking leading and closed
yes/no questions). Although both judges and police ocers are expected to remain objec-
tive when questioning witnesses, judges have authority over police ocers, rule on objec-
tions pertaining to question quality, and at times are directly involved in evaluating police
interviews sometimes even refusing to admit witness statements as evidence that were
obtained through ineective questioning practices. Our ndings suggest that judges do
not adhere to the guidelines that they themselves expect police ocers and lawyers to
follow when gathering evidence from human sources. Consequently, judges are apparently
no better at asking productive questions than the individuals whose questioning behaviour
they critique on a regular basis (i.e. police ocers, lawyers). If judges are using the very same
types of ineectual questions that they are condemning police ocers for using, and even
worse, are using them more frequently, then there are serious questions about how well
information is being regulated in the legal system.
Examination type and utterance response lengths
In direct and cross examinations, judges only ask questions in relation to the lines of ques-
tioning already initiated by the lawyers. However, examinations per curium provide a
glimpse into the judgesown line of questioning for a witness. Comparing across exam-
ination type, we found that judges asked more closed yes/no questions and multiple
questions in examinations per curium than they did during direct and cross examinations.
The reason for this pattern is unclear; however, it is possible that it has to do with the
judgesobjectives in this questioning role within each type of examination. It is possible
that judges asked more closed yes/no questions and multiple questions in examinations
per curium because they were looking for new information as opposed to simply clarifying
or elaborating upon responses already provided. However, such an explanation does not
account for why the judges chose to use those question types more than others to gather
their own information. Given that all judges were once lawyers (either crown or defence)
prior to being appointed to the bench, perhaps their choice for using certain question
types over others is showing some form of bias from their past practice as a lawyer;
that is, lawyers have been found to ask closed yes/no and multiple questions frequently
(e.g. Lively et al., 2020). Nevertheless, this postulation is only speculative on our part since
our current data set is unable to provide any insights on this notion. Consequently, an
interesting future study pertains to the eect of the judges role on the questions
asked during an examination per curium.
Analyses of judge utterance and witness response lengths illustrate the eect that
utterance type has on the amount of information provided by witnesses. As predicted
14 C. J. LIVELY ET AL.
by Hypothesis 3, open-ended questions elicited the most information from witnesses,
averaging more than 50 words per response, even though they were among the shortest
judge utterances, on average, at only 10 words. In contrast, multiple and forced-choice
were the longest utterances, but did not result in the provision of as much information
from the witness, further supporting Hypothesis 3 and echoing ndings from previous
studies on questioning practices (e.g. Kebbell et al., 2004; Lively et al., 2020; Snook
et al., 2012; Snook & Keating, 2011).
Our ndings raise an important question about whether or not judges can eectively
evaluate the appropriateness of the questioning practices of police ocers and lawyers. If
judges are to act as gatekeepers in the court, making consequential decisions about how
lawyers should question witnesses and whether or not to admit evidence obtained by
police ocers during questioning, then they ought to use these productive questions
whenever they are addressing witnesses. Although we did not study how well judges
are able to classify question types and rule which question types are productive or unpro-
ductive a potential area of future research the observed use of unproductive question
types as a proxy measure suggests that judges are likely unable to classify question types
accurately, and ultimately rule on them when being objected by a lawyer.
Limitations
All of our ndings presented here must be considered in light of some limitations. First,
our sample was limited geographically, in that it consisted of court transcripts only
from the Supreme Court of Newfoundland and Labrador. Relatedly, although our
sample is much larger than previous courtroom questioning studies (e.g. Kebbell et al.,
2004; Lively et al., 2020), it was still relatively small, which contributed to imprecise esti-
mates of the percentage of question types asked by the judges (as can be seen in the wide
condence intervals for some utterance types). Future studies should aim to broaden their
samples to include judges from across Canada, using larger samples, to increase general-
izability of their ndings. Moreover, examinations of judicial questioning practices from
other countries (in both adversarial and inquisitorial systems) would contribute even
more to our knowledge of how judges question witnesses. Due to our use of archival
court transcripts, we were also limited with regards to the amount of information we
were given about our sample. For instance, we were not provided with any information
about the judges, with the exception of gender (which we inferred based on names and
pronouns used when this information was presented in the court transcripts), and were
also only provided limited information about the witnesses (i.e. type of witness, inferred
gender). Although additional demographic information about the examinations in our
study would have certainly been useful, we were unable to access that information.
The limited sample also meant that the cases we included in our analysis diered substan-
tially in terms of the year they took place. Ideally, we would have liked for all the cases in
our sample to be recent, but again, we were unable to control these factors however, as
noted in the footnotes, the wide gap between the cases did not change the outcome (or
our interpretation) of the data and conclusions. Our sample also diered with regards to
the type of crime being adjudicated, but we suggest that this is actually somewhat of a
strength rather than a weakness, since many similar studies focus on a single type of
case (e.g. rape; sexual assault; e.g. Kebbell et al., 2004). Nevertheless, future studies
PSYCHOLOGY, CRIME & LAW 15
should attempt to replicate our ndings using samples of more recent and homogenous
cases.
Conclusion
Phrasing questions to avoid tainting responses is undoubtedly a dicult skill to acquire
naturally. Even training people to ask good questions is notoriously dicult to accomplish
(see MacDonald et al., 2016). For these reasons, it is imperative that rigorous checks and
balances in the legal system, by well-trained individuals, are in place to prevent tainted
information from being included in decision processes. Specically, few would quarrel
with the idea that police should be well-trained on the science of interviewing witnesses
and that they should work diligently to ensure evidence is pristine when being used in
investigative and legal proceedings. A failure to follow best practice means they should
be held accountable in court by lawyers. Likewise, lawyers are held accountable by
each other through objections to the types of questions they ask, and by judges who
rule on those objections. Most would likely concur that judges should admonish
lawyers who step out of line in their attempts to inordinately inuence witness testimony.
In each situation, the questioning practices of police ocers and lawyers are kept in check
however imperfect that process may be. However, a more pressing concern emerges
when one asks, who is monitoring the ultimate judicial gatekeepers? Our ndings raise
concerns about the extent to which judges may be tainting information during proceed-
ings, and the preparedness of judges to make decisions about information quality. To
have full faith in lady justice, it is imperative that judges have an expert level of under-
standing of how dierent types of questions impact information quality which does
not yet appear to be the case.
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 identied 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 con-
ducted additional analyses to test whether questioning practices diered 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.
Acknowledgement
Thank you to the clerks at the Supreme Court of Newfoundland and Labrador (Trial Division) court-
house in St. Johns, NL, Canada, for providing the researchers with the dataset.
16 C. J. LIVELY ET AL.
Disclosure statement
No potential conict of interest was reported by the author(s).
Data availability statement
The data that support the ndings of this study are available from the corresponding author upon
reasonable request.
ORCID
Christopher J. Lively http://orcid.org/0000-0002-8702-7542
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