Alaska Comm. R. Evid. 614

As amended through December 18, 2024

Rule 614 - Calling and Examination of Witnesses by Court

(a)Calling by Court. Rule 614 is in accord with the common law in providing that the court may call witnesses. While exercised more frequently in criminal than in civil cases, this power of the judge is well-established. McCormick (2d ed.) § 8, at 13-14; 9 Wigmore § 2484.

Just as it is proper for the court to ask questions in order to clear up confusion created by the parties (see subdivision (b)), the court may, on its own motion, call witnesses who may add facts that are helpful in the search for truth; the court is not entirely a prisoner of the parties' approach to a case. In the same spirit, Rule 706 provides that the court may appoint independent experts in civil or criminal litigation. In a trial before a jury, however, it is important for the court to refrain from suggesting its views on the merits of a case or on the credibility of a witness through its choice of witnesses. For recent appellate discussion of the appearance of impartiality required of the trial court, see United States v. Karnes, 531 F.2d 214 (4th Cir. 1976).

The court may also call witnesses at the suggestion of any party. At common law the most common reasons for a party to suggest that the court call a witness are, first, to avoid the rigid ban on impeachment of one's own witness, and, second, to avoid the rule limiting the use of leading questions in cross-examination, an especially annoying rule when dealing with an uncooperative witness. Since Alaska Rule 607 now allows impeachment of one's own witness, and Rule 611 allows the court discretion to permit the use of leading questions on direct examination, it is doubtful that future instances of the court calling witnesses at the suggestion of a party will be numerous. But the practice may still be useful on occasion, e.g., where a witness is much more cooperative if summoned by the court than by a particular party, or where a party fears guilt by association in calling a witness.

(b)Examination by Court. The authority of the court to question witnesses is also well-established. McCormick (2d ed.) § 8, at 12-13; 3 Wigmore § 784. The court may interrogate any witness, whether called by itself or by a party. In trials before a jury, however, the court's questioning should be cautiously guarded so as not to constitute an implied comment. The court should bear in mind its proper role and the limitations on that role; the court abuses its authority when it plays the part of the advocate. As the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule, their omission in this rule in no sense precludes courts of review from continuing to reverse for abuse.

(c)Objections. The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures. Compare the "automatic" objection feature of Rule 605 when the judge is called as a witness, and the similar feature of Rule 606 when a juror is called as a witness.

When the court calls witnesses and when it questions witnesses, regardless of who called them, the court easily can interfere with the proper workings of the adversary system and the court can threaten the independence of the jury. Thus, the powers conferred by this rule should be exercised with great care. Before utilizing these powers the court should be certain that the parties are incapable of acting to fully protect their interests. See Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64 Va. L. Rev. (1978).

Alaska Comm. R. Evid. 614