(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.

ELEMENTS

A. Court may call witnesses to be cross-examined by all parties, either

COMMENTS

b. At next available opportunity when jury is not present.

The calling of witnesses by the Court is a tradition in American jurisprudence. The procedure has its origins partly from the past practice of disallowing a party to impeach his witness. By requesting the Court to call the witness, the party can avoid having the witness associated with him and may derive the benefits related to cross-examination of the witness. Additionally the Court has the right to call witnesses on its own initiative where the Court is of the view that the witness may contribute to a determination of the issues in the matter. Inasmuch as a party is under no obligation to summon an adverse witness to the stand, the power of the Court

to call a witness and to permit counsel to cross-examine the witness goes far in assuring the complete presentation of the facts.

Rule 614(b) permits the Court to interrogate witnesses it called or question witnesses summoned by the parties. This role by the Court in judicial proceedings has had a long tradition in American jurisprudence and is a well recognized right of the Court. By questioning the witnesses, the Court may help develop the Record and make the matters in evidence much clearer to the jurors. However, caution should be exhibited by the Court in order to insure that it does not convey to the jury its impressions or views of the case and the merits of each party's position. Any views expressed by the Court relative to the evidence should be made out of the presence of the jury. While the Court may comment on the evidence to the jury, it may not add to or distort any of the facts in the case. However, because of possible prejudicial consequences, the Court should exercise restraint and caution before interrogating the witness.

Where the questioning goes beyond clarification and opens up new areas of inquiry or gives undue weight to certain matters in the case, reversal of a favorable verdict becomes more likely. Where the questioning is designed to elicit favorable answers for the prosecution, it is advisable that the court err on the side of abstention and decline to question the witness. Where the Court seeks to have two or more questions asked, the Court should call counsel to the bench and advise them of the Court's purpose and suggest that counsel develop the line of questioning in front of the jury. The mere fact that the Court could examine the witness more skillfully than counsel is no reason to breach the veil of impartiality and intervene.

If the Court improperly intervenes and examines the witness in such a

manner as to indicate his views or position, affected counsel should object to the Court's action out of the presence of the Jury. Additionally, where the Court, during examinations by counsel or by the Court, makes facial expressions, gestures, or intonations which appear to reflect its thinking, counsel should make a full and accurate record out of the jury's presence the gestures or actions of the Court deemed to be detrimental. Furthermore, Counsel should request the Court to emphatically instruct the jury to disregard any expressions by the Court in order to remove any prejudicial taint.

RULE 615

EXCLUSION OF WITNESSES

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

ELEMENTS

A.

Court may exclude witnesses to prevent them from hearing testimony.

3. Person essential to presentation of case as designated by party's

COMMENT

attorney.

This rule requires the exclusion of witnesses in a proceeding by the Court upon the request of a party and it allows the Court to exclude witnesses upon its own motion. The rule makes allowances for parties who are natural persons (e.g., defendant in criminal cases) and therefore must be afforded the Right of Confrontation. In the case of a party who is not a

natural person, the rule allows the party to be represented at counsel's table by designated agents. Additionally, the rule provides for counsel to have available at counsel's table a person whose assistance is necessary for

the effective presentation of the case. This usually occurs where the principal law enforcement officer assigned to the case remains in the courtroom to assist counsel. It is viewed that the agent's familiarity with the case will greatly aid the prosecutor's presentation of all the relevant facts to the Court and Jury.

The criticism leveled at the practice of allowing the police officer to remain in the courtroom is that often he is the principal witness against the accused and if he is inclined to commit any chicanery (as many defendants contend), he may dovetail his testimony to coincide with the other government witness. The practice has been much abused despite the historical support for it. In one district, the District of Columbia Circuit, the United States Attorney's office regularly prosecutes serious cases without the presence of an agent at counsel's table. With few exceptions, the practice of allowing a police officer to remain in the courtroom continues because it has always been done, rather than because of some compelling necessity for it. Nevertheless, the rule sanctions its use and accordingly the prosecutor is entitled to the services of an assistant, including perhaps the principal witness, at trial.