In our last two posts, we took a close look at what the oral arguments data revealed for civil cases the Court decided last year. Today we’ll be looking at the Court’s criminal decisions for 2018.
On the civil side, the Court’s total questions were almost evenly split between appellants and appellees. The criminal side tells a different story. For criminal cases decided in 2018, the Court asked 369 questions of appellants and only 290 of appellees.
That comes to an average of 14.19 questions per argument for appellants, 11.15 for appellees.
We’ve shown in many previous posts that previous scholarship about oral argument analytics – both ours and from several practitioners and academics – that in most appellate courts, the party getting the most questions is more likely to lose (weighing against the often-heard theory that questions during oral argument are “just the Court playing devil’s advocate). So we divide up the data from last year by result. For affirmances in criminal cases, the Court averaged 15.63 questions to appellants (the losing party) and 8.63 to appellees.
For split decisions – cases in which the Court affirmed in part and reversed or modified in part – the Court averaged 14.8 questions to appellants and 10.4 to appellees.
Although we would expect questioning of appellees to be heavier in reversals, the two sides were almost equal in 2018 – 13.08 questions to winning appellants and 13 to appellees.
Join us back here next time as we address the Justice-by-Justice data for 2018.