7.6​Questions or Comments by Judge

A.​Generally Permissible Conduct

“A trial judge has a duty to exercise reasonable control over the interrogation of witnesses and the presentment of the evidence in order to make the interrogation and presentment effective for the ascertainment of the truth. Further, the court may properly interrogate witnesses, whether called by the party or the court itself.” Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 24 (1989) (internal citations omitted). See also MRE 614(a)-(b). “There are ‘three situations in which a trial court has good reason to interject itself into the trial: (1) when the trial is lengthy and complex, (2) when attorneys are unprepared or obstreperous, or if the facts become confused and neither side is able to resolve the confusion, and (3) when a witness is difficult or not credible and the attorney fails to adequately probe the witness, or if a witness becomes confused.’” People v Plomb, ___ Mich App ___, ___ (2025), quoting People v Davis, 216 Mich App 47, 49-50 (1996) (outlining the limited situations in which a trial court may interject itself into the trial). “Questions designed to clarify points and to elicit additional relevant evidence, particularly in a nonjury trial, are not improper.” Law Offices of Lawrence J Stockler, PC, 174 Mich App at 24.

In bench trials, courts are afforded more discretion when questioning witnesses. In re Jackson, 199 Mich App 22, 29 (1993) (notwithstanding, a reversal may be in order when the questions are “intimidating, argumentative, prejudicial, unfair, or partial”). “Nevertheless, a judge’s comments and conduct can indicate a possible bias.” In re Forfeiture of $1,159,420, 194 Mich App 134, 153 (1992). In order to prove bias, a litigant must “show that the judge’s views controlled his decision-making process.” Id. at 154.

B.​Judicial Impartiality During a Jury Trial

The discussion in the following sub-subsections addresses judicial impartiality in the context of a post-trial claim of an unfair and partial trial. For discussion of judicial bias/impartiality in the context of a motion for judicial disqualification, see the Michigan Judicial Institute’s Judicial Disqualification in Michigan publication. See also the Michigan Judicial Insitute’s judicial disqualification checklist and flowchart.

“A trial judge's conduct deprives a party of a fair trial if the conduct pierces the veil of judicial impartiality.” People v Stevens, 498 Mich 162, 164 (2015). “A judge’s conduct pierces this veil and violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” Id. at 164. “This inquiry requires a fact-specific analysis.” Id. at 171. “A single inappropriate act does not necessarily give the appearance of advocacy or partiality, but a single instance of misconduct may be so egregious that it pierces the veil of impartiality.” Id. In making this determination, there is no presumption in favor of the trial court being unbiased. People v Plomb, ___ Mich App ___, ___ (2025) (noting that “neither Stevens nor Swilley^[2] did so”). But see People v Biddles, 316 Mich App 148, 152 (2016) (“A defendant must overcome a heavy presumption of judicial impartiality when claiming judicial bias.”).

1.​Factors for Consideration

“In evaluating the totality of the circumstances, [a] reviewing court should inquire into a variety of factors including, but not limited to, the nature of the trial judge’s conduct, the tone and demeanor of the judge, the scope of the judicial conduct in the context of the length and complexity of the trial and issues therein, the extent to which the judge’s conduct was directed at one side more than the other, and the presence of any curative instructions, either at the time of an inappropriate occurrence or at the end of trial.” People v Stevens, 498 Mich 162, 172, 190-191 (2015) (concluding that “it [was] reasonably likely that the judge’s conduct with respect to defendant’s expert witness improperly influenced the jury by creating the appearance of advocacy or partiality against defendant,” and that the judge’s curative instruction to the jury “was not enough to overcome the bias the judge exhibited against the defense throughout the trial”).

“The fairness of trial and the process that is constitutionally due to a defendant are implicated when the jury is present and when they are excused.” People v Plomb, ___ Mich App ___, ___ (2025) (applying “the multi-factor inquiry on judicial impropriety to behavior that occurred outside the presence of the jury at a jury trial”).

2.​Structural Error

“When the issue is preserved and a reviewing court determines that a judge has pierced the veil of judicial impartiality, a structural error has been established that requires reversing the judgment and remanding the case for a new trial.” People v Stevens, 498 Mich 162, 178 (2015) (citations omitted). “[J]udicial partiality can never be held to be harmless and, therefore, is never subject to harmless-error review.” Id. at 179-180 (citations omitted).

“[An] unpreserved structural error requires [a defendant] to show that ‘(1) error occurred; (2) the error was plain, i.e. clear or obvious, and (3) the plain error affected substantial rights.’” People v Plomb, ___ Mich App ___, ___ (2025), quoting People v Davis, 509 Mich 52, 67-68 (2022).

3.​Analysis of Factors

Nature of judicial conduct. “Identifying the nature of the conduct provides the starting point to evaluate whether the conduct overstepped the line of judicial impartiality.” People v Stevens, 498 Mich 162, 173 (2015). “For instance, when evaluating a judge’s questioning of witnesses, a reviewing court must first bear in mind that such interrogation is generally appropriate under MRE 614(b).” Id. “Therefore, it is appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit additional relevant information.” Id. (noting “the central object of judicial questioning should be to clarify”). “Judicial questioning, nevertheless, has boundaries.” Id. at 174. “It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or unintentionally.” Id. at 174. “It is essential that the judge not permit his own views on disputed issues of fact to become apparent to the jury.” Id. (quotation marks and citation omitted); see also id. at 180, 186 (holding that the trial court’s “repeated questioning of defendant’s expert” invaded the prosecutor’s role and “projected incredulity, bias, and hostility”).

“It is difficult to distinguish the impact on a trial where a judge directly questions one party’s witness versus where a judge directs strategy for one of the parties in a way that results in the questioning of a key witness.” People v Plomb, ___ Mich App ___, ___ (2025). In Plomb, “this strategic advising happened in a manner that was nonresponsive to the prosecutor’s own objection and out-of-step with the prosecution’s clear strategy with respect to prior bad acts (which was to not use them).” Id. at ___. “[W]hile the judge did not actually resort to questioning the [confidential informant] before the jury, the judge laid out the specific questions for cross-examination and told the parties that these questions would be asked in front of the jury.” Id. at ___; see also id. at ___ n 2 (“Notably, at one point the judge did say he would do the questioning himself.”). “Just as credibility is squarely the responsibility of the jury, strategy is squarely the responsibility of the attorneys.” Id. at ___ (weighing factor “in favor of concluding the judge pierced the veil of judicial impartiality”).

“‘[I]t is appropriate for a judge to question witnesses to produce fuller and more exact testimony or elicit additional relevant information.’” People v Swilley, 504 Mich 350, 372 (2019), quoting Stevens, 498 Mich at 173. “However, ‘undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on the judge’s part toward witnesses . . . may tend to prevent the proper presentation of the cause, or the ascertainment of truth in respect thereto[.]’” Swilley, 504 Mich at 372, quoting Stevens, 498 Mich at 174 (alterations in original).

“A judge should not exhibit disbelief of a witness intentionally or unintentionally or permit his own views on disputed issues of fact to become apparent to the jury, [and a] judge should avoid questions that are intimidating, argumentative, or skeptical.” Swilley, 504 Mich at 372-373 (quotation marks and citation omitted). “[I]t is not the role of the court to impeach a witness or undermine a witness’s general credibility.” Id. at 373. “Questions from a judge that are designed to emphasize or expose incredible, unsubstantiated, or contradictory aspects of a witness’s testimony are impermissible.” Id. at 374 (the trial judge’s conduct weighed in favor of finding that he pierced the veil of judicial impartiality where his “questioning of [the witness] did not serve to clarify any of the issues or produce fuller testimony but, instead, served to impeach and to undermine the witness’s general credibility”). See also Loranger v Jageman, 169 Mich 84, 86 (1912) (defendant did not receive a fair and impartial trial where the jury heard the judge’s opinions on the facts of the case).

Tone and demeanor. “To ensure an appearance of impartiality, a judge should not only be mindful of the substance of his or her words, but also the manner in which they are said.” Stevens, 498 Mich at 175. “Hostile questions from a judge are particularly inappropriate when the witnesses themselves have done nothing to deserve such heated inquiry.” Id. “A judge must proceed with particular care when engaging with a criminal defendant.” Id. “Judicial questioning might be more necessary when a judge is confronted with a difficult witness who refuses to answer questions posed by attorneys or repeatedly responds to those questions with unclear answers, although the manner of judicial involvement remains at the center of the examination by a reviewing court.” Id. at 175-176.

“It will often be the case that analysis under this factor will dovetail with analysis of the nature and type of judicial conduct; the manner in which the judge’s inquiry is made will affect how the jury perceives the conduct.” Id. at 186. “To the extent that it is appropriate, these factors may be considered together.” Id.

“Because of the jury’s inclination to follow the slightest indication of bias on the part of the judge, ‘[t]o ensure an appearance of impartiality, a judge should not only be mindful of the substance of his or her words, but also the manner in which they are said.’” Swilley, 504 Mich at 381, quoting Stevens, 498 Mich at 175. Controversial manner, tone, pert remarks, and quips should be avoided, and “[a]dversarial cross-examination of a witness by a judge is impermissible.” Swilley, 504 Mich at 381. While “[j]udicial questioning might be more necessary when confronted with a difficult witness who refuses to answer questions or provides unclear answers, . . . judicial intervention is less justified when a witness provides clear, responsive answers, or has done nothing to deserve heated judicial inquiry.” Id. at 381-382 (the trial judge’s repeated use of questions that suggested the witness’s actions were illogical or unnatural cast doubt on the witness’s truthfulness and indicated the judge was skeptical of the witness; the judge’s use of questions to make substantive points and arguments supported a conclusion of judicial partiality).

Length and complexity of trial. “In a long trial, or one with several complicated issues posed to the jury, for instance, it may be more appropriate for a judge to intervene a greater number of times than in a shorter or more straightforward trial.” Stevens, 498 Mich at 176. “Likewise, given the principle that a judge’s questions may serve to clarify points that are obscure or confusing, a judge’s inquiries may be more appropriate when a witness testifies about a topic that is convoluted, technical, scientific, or otherwise difficult for a jury to understand.” Id. (citation omitted).

However, “when a witness testifies on a clear or straightforward issue, judicial questioning is less warranted, even if the testimony occurs within the context of a lengthy trial, or one that involves other complex but unrelated matters.” Swilley, 504 Mich at 387 (concluding this factor “support[ed] the conclusion that the [trial] judge pierced the veil of judicial impartiality” when he “intervened extensively and inappropriately” during testimony that “was not technical, convoluted or scientific”).

Extent judicial conduct was directed at one side. “Judicial partiality may be exhibited when an imbalance occurs with respect to either the frequency of the intervention or the manner of the conduct.” Swilley, 504 Mich at 388 (quotation marks and citation omitted). “This inquiry is therefore twofold: in order to determine whether judicial questioning was imbalanced, a reviewing court must evaluate both the frequency of the questions and the manner in which they were asked.” Id. “[T]o assess whether judicial questioning was imbalanced, [an appellate court does] not simply look at the number of questions but also the nature of those questions.” Id. (“stark difference[s] between the trial judge’s treatment of witnesses on opposing sides of [the] case . . . support[ed] a conclusion of judicial partiality”).

Presence of a curative instruction. “The presence or absence of a curative instruction is a factor in determining whether a court displayed the appearance of advocacy or partiality.” Plomb, ___ Mich App at ___ (cleaned up). “The model jury instructions—both for civil and criminal trials—emphasize that a judge’s . . . questions do not constitute evidence and that the jury should not attempt to discern the judge’s personal opinion while considering the case.” Stevens, 498 Mich at 177. “Additionally, during the course of a proceeding, a trial judge has the ability to issue a curative instruction immediately in response to conduct that could give rise to the appearance of bias.” Id. “Because it is well established that jurors are presumed to follow their instructions, a curative instruction will often ensure a fair trial despite minor or brief inappropriate conduct.” Id. (cleaned up). “Depending on the circumstances, an immediate curative instruction may further alleviate any appearance of advocacy or partiality by the judge.” Id. “That said, in some instances judicial conduct may so overstep its bounds that no instruction can erase the appearance of partiality.” Id. at 177-178.

“[A] judge’s administration of curative instructions does not always guarantee that a defendant has received an impartial trial; in some instances judicial conduct may so overstep its bounds that no instruction can erase the appearance of partiality.” Swilley, 504 Mich at 390 (quotation marks and citation omitted) (although the trial judge instructed the jury throughout the trial that he had no interest in the case’s outcome, “his lengthy badgering of [witnesses] suggested the opposite,” leaving curative instructions “particularly empty”). See also In re Parkside Housing Project, 290 Mich 582, 599-600 (1939) (judge’s repeated curative instructions did not erase the appearance of partiality in light of his conduct during trial).