Rule 614 Calling and interrogation of witness by court. (a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. [L 1980, c 164, pt of 1]

 

RULE 614 COMMENTARY

 

This rule is identical with Fed. R. Evid. 614.

Subsections (a) and (b): The right of the court both to call and to question witnesses has long been recognized as fundamental in the Anglo-American adversary system. McCormick 8; 9 Wigmore, Evidence 2484 (3d ed. 1940).

The power of the court to summon witnesses on its own motion was addressed in Kamahalo v. Coelho, 24 H. 689, 694 (1919), where the trial court called in a handwriting expert. The supreme court said: "[C]ourts have from the earliest period exercised the right to call in experts to aid them in their deliberations and this right we concede." Compare Rule 706 infra, dealing with expert witnesses.

The Hawaii Supreme Court has also recognized the right of the court to interrogate witnesses. In Territory v. Kekipi, 24 H. 500, 504 (1918), the court said:

The trial judge should never assume the duties of counsel, but if he at any time becomes convinced that the witness has misunderstood the questions propounded by either counsel and as a result of such misunderstanding the import of his testimony is in doubt, it is not only his privilege but his duty to ask such questions of the witness as are necessary to remove such doubt and fully develop the truth in the case.

Accord, Territory v. Sable Hall, 39 H. 397 (1952). This right is strictly circumscribed. In Territory v. Van Culin, 36 H. 153, 162 (1942), the Hawaii Supreme Court held that the trial judge's extensive cross-examination of a criminal defendant biased the jury and, therefore, constituted reversible error. The court said: "When a trial judge so indulges himself, no matter what his motives may be or what explanation or excuse may be offered, his conduct can have but one effect upon the jury and that is to impress them that the judge is convinced of the defendant's guilt." Cf. State v. Pokini, 57 H. 17, 548 P.2d 1397 (1976).

Subsection (c): The intent of this subsection is to enable counsel to avoid the tactical awkwardness of objecting to judicial summoning or interrogation of witnesses in the jury's presence without courting the hazard of waiving the right to object due to lack of timeliness. Compare Rule 605.

 

Case Notes

 

Under specific facts of case, court did not fail to act impartially when it called its own additional witnesses; hence no abuse of discretion. 80 H. 251 (App.), 909 P.2d 579 (1995).

Within trial court's discretion to call its own witnesses after the parties have rested. 80 H. 251 (App.), 909 P.2d 579 (1995).

Trial judge did not overstep permissible bounds in questioning officer and deprive defendant of a fair trial as judge's questions were directed at ascertaining the interaction between defendant and officer and sought pertinent and material information about whether defendant's conversations with officer constituted offers or agreements to engage in sex for a fee. 107 H. 360 (App.), 113 P.3d 811 (2005).

 

 

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