Delaware Trial Handbook § 3:1. CONDUCT OF THE TRIAL GENERALLY

The conduct of a trial is a matter committed to the discretion of the presiding judge.1 During the trial, the judge is not merely a referee between adversaries. The judge’s function is to see that the rules of practice and evidence are applied to insure a fair trial. In furtherance of this function, a judge may order that evidence be excluded as being contrary to the rules, whether or not the opposing party has objected to the introduction of such evidence.2 The judge also controls the mode and order of presentation of evidence.2.1 However, such authority should be exercised sparingly so as not to deprive a litigant of the right to manage the presentation of his, her or its case.2.2 Similarly, the judge can also act independently to foreclose counsel from making improper arguments to the jury.3

Under the general practice, judges will not permit jurors to ask questions or to submit questions to be propounded by the judge to the witnesses where the parties object.  However, in eminent domain cases, where the trial is before “commissioners,” rather than jurors 3.1, it has been the practice in the past to permit commissioners to ask questions of witnesses or of counsel.  Some judges have, in the past, expressly advised the commissioners at the beginning of and during the trial of their right to ask questions.  In other types of cases, it has been known to happen that the jury requests the judge to ask a question or questions to elicit a specific fact not clear from the evidence. Where counsel for all the parties have objected, judges have declined the request. The matter is within the discretion of the trial judge.4

A trial judge is permitted to ask questions of a witness.  In a non-jury trial, the judge generally feels free to ask questions of the witnesses, and the practice is not uncommon. In jury cases, a judge must exercise caution in asking questions, as the judge must maintain an impartial attitude and a status of neutrality, and a jury may be influenced by the judge’s questioning because of the judge’s status.4.1

Beyond the conduct of the trial participants, the trial judge has responsibility for maintaining a stable environment for the trial to proceed. If circumstances warrant it, the trial judge has the right to take reasonable security precautions to insure peace and dignity at the trial. Such measures, however, should not be unduly restrictive or violate any right or privilege of any person.5

In all matters before the court, it is improper for a judge to engage in ex parte communication with any of the parties or counsel,6 or jurors,6.1 and it is improper for counsel or a party to initiate any ex parte communication with a judge. Similarly, in jury cases it is improper for any of the parties or counsel to engage in any ex parte communication with a juror, and it is improper for a juror to initiate or engage in any ex parte communication with a party or counsel.7 Exceptions to the foregoing are communications to a judge by a lawyer for administrative purposes such as scheduling and providing for notice and ex parte communications by a judge with a jury with a view to adding to the comfort and convenience of the jury. Any administrative or ministerial information imported to the jury should be in writing or on the record in open court or proposed in chambers with counsel present and available to comment on the record.8 Practicalities may dictate other exceptions, such as circumstances under which a party may apply for and the Court of Chancery may issue a temporary restraining order ex parte,9 or where a petitioner in the Family Court may request and receive ex parte an emergency protective order to protect against an immediate and present danger of domestic violence.10 Further, where the parties consent, a judge may meet separately with the parties and their counsel in an effort to mediate or settle pending matters.11

Where communications with a judge are expressly authorized by law, such as a probation officer communication with a judge, such communication is not deemed to be ex parte.  Nonetheless, such communications should be on the record.11.1

In a bench trial, it is improper for a judge to engage in ex parte communications with third parties, such as experts, concerning the merits of issues pending before the court.12 Absent an emergency, the trial judge has a fundamental duty to notify the parties of any such intended communication in advance and to permit them meaningful participation in the discussion. In emergency situations where advance notice is not possible, the judge must maintain a proper written record of the ex parte communication and thereafter provide the parties an opportunity to be heard on any issue relating to or arising from the communication.13 This rule is not intended to preclude a judge from consulting with other judges or with other court personnel whose function it is to aid the judge in carrying out adjudicative responsibilities.14  However, a judge may not engage in independent research and rely on it in ruling, particularly where the judge rejects in-court testimony in favor of that independent research.14.1

1. Christiana Care Health Services, Inc. v. Crist, 956 A.2d 622, 625-26 (Del. 2008); Czech v. State, 945 AS.2d 1088, 1095 (Del. 2008); Eustice v. Rupert, 460 A.2d 507, 511 (Del. 1983); Smith v. State, 317 A.2d 20, 23 (Del. 1974); Miller v. State, 224 A.2d 592, 595 (Del. 1966); Perrine v. Pennroad Corp., 7 A.2d 479, 490 (Del. 1946), cert. denied, 329 U.S. 808 (1946).

2. Alexander v. Cahill, 829 A.2d 117, 130 (Del. 2003); State Highway Dept. v. Buzzuto, 264 A.2d 347, 351 (Del. 1970); South Atlantic S.S. Co. v. Munkacsy, 187 A. 600, 606 (Del. 1936), cert. denied, 299 U.S. 607 (1936). See also Duggan v. New Jersey & W. Ferry Co., 76 A. 636, 638 (Del. Super. 1909) (judge can strike testimony in the absence of objection).

2.1. Health Services, Inc. v. Crist, 956 A.2d 622, 625-26 (Del. 2008); Jones v. State, 940 A.2d 1, 16 (Del. 2007).

2.2. Barrow v. Abramowicz, 931 A.2d 424, 430 n.8 (Del. 2007); Green v. Alfred I. du Pont Institute of Nemours Foundation, 750 A.2d 1060, 1065 (Del. 2000).

3. State v. Bennefield, 567 A.2d 863, 868 (Del. 1989); Saunders v. State, 401 A.2d 629, 632 (Del. 1979), cert. denied, 449 U.S. 845 (1980) (in the absence of any evidence of racial overtones, the trial judge properly foreclosed counsel for the defendant from injecting race issues into the closing argument).

3.1. See 10 Del. C. § 6108.

4. See D.R.E. 614(c). For a discussion of interrogation of witnesses by the court, see § 12:6.

4.1. Lagola v. Thomas, 867 A.2d 891, 898 (Del. 2005); Price v. Blood Bank of Delaware, 790 A.2d 1203, 1210-12 (Del. 2002).

5. Wilson v. State, 305 A.2d 312, 316 (Del. 1973); Verdijo v. State, No. 254, 1989, slip op. at 11, Holland, J. (Del. June 29, 1990) (ORDER), disposition reported at 578 A.2d 1097 (Del. 1990) (TABLE). See also Del. Code Jud. Cond., Canon 3(A)(2) (“[a] judge should maintain order and decorum in proceedings before him”).

6. Del. Code Jud. Cond., Canon 3(A)(4).

6.1. Weber v. State, 971 A.2d 135, 143 (Del. 2009); Anderson v. State, 695 A.2d 1135, 1139-40 (Del. 1997).

7. See Del. R. Prof. Cond. 3.10(b)(a lawyer may not communicate with or cause another to communicate with jurors in a case); 11 Del. C. §§ 1264-1267 (it is a criminal offense to bribe or otherwise attempt to influence a juror, and it is a crime for a juror to accept a bribe or agree to vote a certain way for a party).

8. Weber v. State, 971 A.2d 135, 143 (Del. 2009); Del. Code Jud. Cond., Canon 3(A)(4), commentary.

9. Ch. Ct. R. 65(b). See also 10 Del. C. §§ 7105(b), 7204 (authorizing the Court of Chancery to issue ex parte restraining orders in actions relating to nuisances involving obscenity or social vices).

10. 10 Del. C. § 947.

11. Del. Code Jud. Cond., Canon 3(A)(4).

11.1. Carrigan v. State, 945 A.2d 1073, 1078-79 (Del. 2008).

12. Yost v. Johnson, 591 A.2d 178, 182 (Del. 1991); Ruggles v. Riggs, 477 A.2d 697, 702 (Del. 1984); Phillips v. Delaware Power & Light Co., 216 A.2d 281, 285 (Del. 1966); Barks v. Herzberg, 206 A.2d 507, 509 (Del. 1965); Del. Code Jud. Cond., Canon 3(A)(4).

13. Yost v. Johnson, 591 A.2d 178, 182 (Del. 1991); Del. Code Jud. Cond., Canon 3(A)(4).

14. Del. Code Jud. Cond., Canon 3(A)(4), commentary.

14.1. Tribbitt v. Tribbitt, 963 A.2d 1128, 1131 (Del. 2008).

© 2010  David L. Finger