§614 Court's Examining or Calling a Witness

• Library: Evidence Restated Deskbook (2021 Ed.)

§614 Court's Examining or Calling a Witness

A. Examining. The court may examine a witness regardless of who calls the witness.

B. Calling. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.

C. Objections outside hearing of jury. In jury cases, the better practice is for objections to the calling of witnesses by the court or to interrogation by it to be made at the time or at the next available opportunity when the jury is not present.

Notes

A. Examining

Although it is fundamental that a trial court must:

· maintain complete fairness and impartiality, State v. Singh, 586 S.W.2d 410 (Mo. App. S.D. 1979);

· not act as a partisan for a party, Townsend v. City of Joplin, 123 S.W. 474, 477 (Mo. App. S.D. 1909); and

· not take the conduct of the trial out of the hands of the attorneys, Bova v. Bova, 135 S.W.2d 384, 385 (Mo. App. E.D. 1940),

it is well-recognized that a trial court may, in its discretion, examine a witness, including the accused in a criminal case, when the witness takes the stand, to:

· comprehend what the witness has said;

· develop the truth more fully;

· clarify testimony; and

· be sure that the witness communicates with the jury in an intelligible manner.

See:

· McLaughlin v. State, 378 S.W.3d 328, 339 (Mo. banc 2012)

· State v. Nguyen, 406 S.W.3d 506, 508 (Mo. App. E.D. 2013)

· State v. Grant, 394 S.W.2d 285, 287–88 (Mo. 1965)

· State v. Cain, 485 S.W.2d 60, 62 (Mo. 1972)

· State v. Bass, 81 S.W.3d 595 (Mo. App. W.D. 2002)

· State v. Campbell, 556 S.W.2d 742 (Mo. App. E.D. 1977)

· State v. McGinnis, 441 S.W.2d 715 (Mo. 1969)

It has been said that this ability to question witnesses is among the judge's inherent powers in the administration of justice, "to be exercised so that abuses of justice shall not be accomplished." State v. James, 321 S.W.2d 698, 704 (Mo. 1959); see also:

· State v. Pearson, 519 S.W.2d 354, 359 (Mo. App. W.D. 1975)

· State v. Whitfield, 650 S.W.2d 305, 306 (Mo. App. E.D. 1983)

· True v. True, 762 S.W.2d 489, 493 (Mo. App. W.D. 1988)

Moreover, it has been said to exist because a trial judge is not a mere umpire who should only interfere when needed to decide whether the rules of the game have been violated:

The function of a judge sitting in a case is to give the litigants an opportunity under the law to have their cases properly adjudicated. He is not a mere moderator between the contending parties. He is a sworn officer, charged with great public duties. In order to establish justice, maintain truth, and prevent wrong, he has a large discretion in the application of rules of practice, and his action in this respect will not be reversed by an appellate court unless it exhibits an abuse of discretion resulting in injustice. A judge, in the discharge of his duties, may call and examine witnesses in furtherance of justice, and may ask leading questions in order to elicit the truth. It is not only his right, but his duty, to do so.

Townsend, 123 S.W. at 477 (citations omitted).

But in questioning a witness, a trial judge should avoid "indicat[ing] [by the questions] any opinion on an issue of fact or on the merits of the case or the credibility of the witnesses or the weight and sufficiency of the evidence or other similar matters," for it is improper to do so. Nolting v. Petersen, 404 S.W.2d 410 (Mo. App. E.D. 1966); see also Duncan v. Pinkston, 340 S.W.2d 753, 758 (Mo. 1960); Harms v. Simkin, 322 S.W.2d 930, 938 (Mo. App. E.D. 1959).

The judge's inherent role and duty to call and examine witnesses also includes allowing questions from jurors when appropriate. See Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003) ("A...