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.



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



  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.