The Scope of Judge’s Questions in Adversarial Proceedings
Keywords:
Principle of Adversarial Proceedings, Adversarial Model, Role of The Judge, Witness Examination, Neutral Arbiter, Right to a Fair Trial, Scope of a Judge’s Question.Abstract
The article discusses the compatibility of a judge’s ability to pose a question to a witness with the principle of adversarial proceedings, within the adversarial model of the procedure. The aim of the research is to analyse whether both the regulation established under Article 25 of the Criminal Procedure Code of Georgia – which grants the judge the ability to pose a question to a witness – and the new practice introduced following the Constitutional Court’s judgment – whereby the judge poses questions to witnesses without prior consultation with the parties – comply with constitutional and international standards.
The theoretical basis of the research is the dogmatic understanding of the principle of adversarial proceedings within the adversarial model of the procedure, the comparative analysis of the Georgian legal system, as well as the jurisprudence of the Constitutional Court of Georgia and the Supreme Court of the United States, and the case-law of the European Court of Human Rights.
In the concluding part of the article, it is established that despite the central importance of the principle of adversarial proceedings, the court is under an obligation to ensure fair trial. Accordingly, a judge may pose a question independently, provided that strict neutrality and self-restraint are observed, so as not to undermine the principle of adversarial proceedings. The concluding part of the article also presents recommendations for improving procedural provisions.
References
1. Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, 4/11/1950.
2. Constitution of Georgia, Departments of Parliament, 24/08/1995.
3. Criminal Procedure Code of Georgia, Legislative Herald of Georgia, 20/02/1998, (invalidated 01/10/2010).
4. Criminal Procedure Code of Georgia, Legislative Herald of Georgia, 09/10/2009.
5. Law of Georgia on Normative Acts, Legislative Herald of Georgia, 09/11/2009.
6. Akubardia I., Some Aspects of the Georgian Model of Adversarial Proceedings, German-Georgian Criminal Law Journal, No. 2, 2016 (in Georgian).
7. Akubardia, I., Equality of Arms and the Role of the Judge in Adversarial Proceedings, Mzia Lekveishvili Jubilee Collection, 2014 (in Georgian).
8. Eser A., Adversarial or Inquisitorial Procedure: In Search of Optimal Structures, German-Georgian Criminal Law Journal, No. 3, 2019 (in Georgian).
9. Vepkhvadze, L., Role of the Judge in Adversarial Proceedings, Justice and Law, No. 1, 2018 (in Georgian).
10. Vepkhvadze, L., Principle of Adversarial Proceedings at the Investigation Stage in Georgian Criminal Procedure (Comparative Legal Analysis Based on the Example of Georgia), Justice and Law, No. 2, 2017 (in Georgian).
11. Tordia V., Role of the Judge and the Legal Status of the Victim in Georgian Criminal Proceedings, Justice and Law, No. 2, 2017 (in Georgian).
12. Tumanishvili G., Criminal Procedure, General Part, Tbilisi, 2014 (in Georgian).
13. Kochlamazashvili B., The Possibility for a Party to Challenge and Examine Its Own Evidence in Criminal Proceedings, Justice and Law, No. 3, 2023 (in Georgian).
14. Laliashvili, T., Harmonious Convergence of the Anglo-American and Continental European Criminal Procedure Systems and Its Significance for the Georgian Criminal Justice System, Justice and Law, No. 4, 2016 (in Georgian).
15. Laliashvili T., Criminal Procedure – General Part, Tbilisi, 2015 (in Georgian).
16. Melkadze O., Constitutionalism, Tbilisi, 2008 (in Georgian).
17. Mskhiladze L., Principle of Adversarial Proceedings in Modern Legal Systems, Justice and Law, No. 4, 2021 (in Georgian).
18. Mskhiladze L., Commentary on Article 25 of the Criminal Procedure Code of Georgia, Justice and Law, No. 2, 2020 (in Georgian).
19. Niparishvili B., Admissibility of Evidence in Criminal Proceedings Under the Case-Law of the European Court of Human Rights, Justice and Law, No. 3, 2017 (in Georgian).
20. Turava M., Harmonious Convergence in International Criminal Procedure and Georgian Criminal Procedural Rules, in the Collection of Articles on Human Rights Protection and Legal Reform in Georgia, edited by K. Korkelia, Tbilisi, 2014 (in Georgian).
21. Commentary on the Criminal Procedure Code of Georgia, edited by G. Giorgadze, Tbilisi, 2015 (in Georgian).
22. Khachvani T., Principle of Adversarial Proceedings (Comparative Analysis), Justice and Law, No. 2, 2012 (in Georgian).
23. Heger M., Adversarial and Inquisitorial Elements in the Criminal Procedure Legislation of European States as a Challenge of the Europeanisation of Criminal Procedural Law, German-Georgian Criminal Law Journal, No. 2, 2016 (in Georgian).
24. Plenum Judgment No. 3/2/1478 of 28 December 2021 of the Constitutional Court of Georgia in the case “The Constitutional Submission of the Tetritskaro District Court regarding the constitutionality of the second sentence of Article 3.20, the third sentence of Article 25.2, Article 48.1 and Article 48.2, the first sentence of Article 48.5 and the first sentence of Article 48.7 of the Criminal Procedure Code of Georgia.”
25. Constitutional Submission of the Tetritskaro District Court of 10 January 2020 in case No. 1478.
26. Judgment No. 2/13/1234,1235 of 14 December 2018 of the Constitutional Court of Georgia in the case “Citizens of Georgia – Roin Mikeladze and Giorgi Burjanadze v. the Parliament of Georgia.”
27. Judgment No. 1/4/809 of 14 December 2018 of the Constitutional Court of Georgia in the case “Citizen of Georgia Titiko Chorgoliani v. the Parliament of Georgia.”
28. Judgment No. 1/8/594 of 30 September 2016 of the Constitutional Court of Georgia in the case “Citizen of Georgia Khatuna Shubitidze v. the Parliament of Georgia.”
29. Judgment No. 3/1/608,609 of 29 September 2015 of the Constitutional Court of Georgia in the case “Constitutional Submission of the Supreme Court of Georgia regarding the constitutionality of Article 306.4 of the Criminal Procedure Code of Georgia and the Constitutional Submission of the Supreme Court of Georgia regarding the constitutionality of subparagraph “g“ of Article 297 of the Criminal Procedure Code of Georgia.”
30. Judgment No. 1/4/557,571,576 of 13 November 2014 of the Constitutional Court of Georgia in the case “Citizens of Georgia – Valerian Gelbakhiani, Mamuka Nikolaishvili and Aleksandre Silagadze v. the Parliament of Georgia.”
31. Plenum Judgment No. 3/1/574 of 23 May 2014 of the Constitutional Court of Georgia in the case “Citizen of Georgia Giorgi Ugulava v. the Parliament of Georgia.”
32. The US Federal Rules of Evidence (1975), https://www.rulesofevidence.org /fre/article-vi/rule-614/, [15.11.2025].
33. Archer D., Cross-Examining Lawyers, Facework and the Adversarial Courtroom, Journal of Pragmatics, 43, 2011.
34. Fairclough S., Resilience-building in Adversarial Trials: Witnesses, Special Measures and the Principle of Orality, Social and Legal Studies, 1-26, 2023.
35. Goodpaster G., On the Theory of American Adversary Criminal Trial, Journal of Criminal Law and Criminology, Vol. 78, No. 1, 1987.
36. Grande E., Legal Transplants and the Inoculation Effect: How American Criminal Procedure Has Affected Continental Europe, The American Journal of Comparative Law, Vol. 64, No. 3, 2016.
37. Guntsadze S., in Commentary on the Criminal Procedure Code of Georgia, edited by G. Giorgadze, Tbilisi, 2015 (in Georgian).
38. Jackson J. D. and Doran S., Addressing the Adversarial Deficit in Non-Jury Criminal Trials, Israel Law Review, Vol. 31, 1997.
39. Jackson D. J., The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?, The Modern Law Review, Vol. 68, No. 5, 2005.
40. Kremens K., Inquisitorial and Adversarial Influences on the Examination of a Witness in the International Criminal Procedure, Przeglad Prawa I Administracji C/2 Wroclaw, 2015.
41. Liparteliani L., in Commentary on the Criminal Procedure Code of Georgia, edited by G. Giorgadze, Tbilisi, 2015 (in Georgian).
42. Lively J. C., Fallon L., Snook B., Fahmy W., Objection, Your Honour: Examining the Questioning Practices of Canadian Judges, Psychology, Crime and Law, 2022.
43. Papiashvili L., in Commentary on the Criminal Procedure Code of Georgia, edited by G. Giorgadze, Tbilisi, 2015 (in Georgian).
44. Roberts P., Theorising Evidence Law, Oxford Journal of Legal Studies, Vol. 43, No. 3, 2023.
45. Saltzburg A. S., The Unnecessarily Expanding Role of the American Trial Judge, Virginia Law Review, Vol. 64, No.1, 1978.
46. Simon D., The Adversarial Bias, Annual Review of Law and Social Science, 2025.
47. Gäfgen v. Germany, [ECtHR], GC, App. No. 22978/05, 1 June 2010.
48. Allan v. the United Kingdom, [ECtHR], App. No. 48539/99, 5 November 2002.
49. Khan v. the United Kingdom, [ECtHR], App. No. 35394/97, 25 March 2000.
50. Schenk v. Switzerland, [ECtHR], Plenary, App. No. 10862/84, 12 July 1988.
51. Washington v. The Attorney Gen., United States Court of Appeals, Fourth Circuit, 2017.
52. United States v. Rivera-Rodriguez, United States Court of Appeals, First Circuit, 2014.
53. United States v. Ottaviano, United States Court of Appeals, Third Circuit, 2013.
54. United States v. Vosburgh, United States Court of Appeals, Third Circuit, 2010.
55. United States v. Dominguez Benitez, Supreme Court of United States, 2004.
56. United States v. Adedoyin, United States Court of Appeals, Third Circuit, 2004.
57. State v. Ross, Supreme Court of Tennessee, at Jackson, 2001.
58. United States v. Godwin, United States Court of Appeals, Fourth Circuit, 2001.
59. United States v. Wilensky, United States Court of Appeals, Third Circuit, 1985.
60. United States v. Beaty, United States Court of Appeals, Third Circuit, 1983.
61. United States v. Nobel, United States Court of Appeals, Third Circuit, 1982.
62. United States v. Green, District of Columbia Court of Appeals, 1976.
63. Lutwak v. United States, United States Supreme Court, 1953.
64. Quercia v. United States, United States Supreme Court, 1933.
65. Legal Information Institute, Cornell Law School.
[https://www.law.cornell.edu/wex/leading_qu estion], [15.11.2025].
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