705.10Questioning by the Court [Rule 614]

The Basic Rule

Rule 614 – Calling and Interrogation of Witnesses by Court

G.S. 8C-614.

Legal Overview

Procedure

Under this rule, the court is permitted to call witnesses to testify on the court’s own motion or at the suggestions of the parties. G.S. 8C-614(a), (b). The rule also authorizes the judge to ask questions of any witness, whether the witness was called by the parties or the court. G.S. 8C-614(b); State v. Hill, 105 N.C. App. 489 (1992). Despite this statutory authorization, “it is anticipated that the court will exercise its authority to call or interrogate a witness only in extraordinary circumstances.” G.S. 8C-614, Official Commentary.

When the judge examines a witness, there is no need for the parties to object to any of the court’s questions; it is presumed under this rule that the party has made an objection and the judge has overruled it. G.S. 8C-614(c). Additionally, all parties are entitled to cross-examine any witness called by the court. G.S. 8C-614(a).

See also the related Trial entry on Examination of Witnesses (Section F: “Examination by Court”)

Permissible Questions

In general, the judge is allowed to ask any questions that are necessary to clarify matters of fact, address an overlooked issue, or elicit other relevant testimony, even if that testimony relates to an element of the offense. See, e.g., State v. Rios, 169 N.C. App. 270 (2005) (trial judge has duty to control examination of witnesses, including eliciting overlooked pertinent facts – no error for court to question witness to clarify a critical element of the case); State v. Smarr, 146 N.C. App. 44 (2001) (judge may ask questions that help prove an element of state’s case as long as judge does not comment on strength of evidence or credibility of witness); State v. McGraw, 300 N.C. 610 (1980) (judge may not comment on witness’s credibility, but it is generally proper and occasionally necessary for the court to examine a witness); State v. White, 37 N.C. App. 394 (1978) (proper for court to ask questions to clarify testimony); State v. Spinks, 24 N.C. App. 548 (1975) (judge’s questions did not deprive defendant of due process or a fair trial).

Impermissible Questions

The judge must not express (through questions, tone, demeanor, or otherwise) in the presence of the jury any opinion regarding a factual issue, the defendant’s guilt, or the credibility of a witness or the evidence. See G.S. 15A-1222 (“The judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.”); G.S. 8C-614, Official Commentary (“The court may not in calling or interrogating a witness do so in a manner as to suggest an opinion as to the weight of the evidence or the credibility of the witness in violation of G.S. 15A-1222); State v. Hill, 105 N.C. App. 489 (1992) (judge is permitted to question witness, but “a trial judge can very easily and unwittingly influence a jury by seemingly impartial remarks and should, therefore, exercise the greatest restraint in his comments”); State v. Chandler, 100 N.C. App. 706 (1990) (court may question witness for the purpose of clarifying witness' testimony and for promoting a better understanding of it, but the examination must be conducted with care and in a manner which avoids prejudice to either party); State v. Johnson, 20 N.C. App. 699 (1974); State v. Freeman, 280 N.C. 622 (1972).

1. Impeachment of Witnesses
   It is improper for the court to ask questions designed to impeach a witness and cast doubt on his or her credibility. State v. Bond, 20 N.C. App. 128 (1973) (“the court may not ask a defendant or a witness questions tending to impeach him or to cast doubt upon his credibility […] The judge must exercise great care to see that nothing he does or says during the trial can be understood by the jury as an expression of an opinion on the facts or conveys an impression of judicial leaning”); accord, State v. Dees, 14 N.C. App. 110 (1972); State v. Blalock, 9 N.C. App. 94 (1970). But see State v. Pope, 122 N.C. App. 89 (1996) (court’s follow-up questions to sheriff’s deputy about their mediation process was simply trying to clarify the usual practices of the department; it was not an attempt to “rehabilitate” the witnes).
   However, if appropriate, the judge may give an admonishment to a witness to encourage him or her to testify truthfully. See State v. Ballard, 180 N.C. App. 637 (2006) (no error where judge admonished “a reluctant and anxious teenage witness to eat, rest and take her medications to enable her to testify truthfully and avoid perjury”).
2. Manner of Questioning
   Even if the subject matter of the questions is ostensibly proper, the judge must also refrain from improperly expressing an opinion through the frequency or tone of the questions themselves. See, e.g., State v. Currie, 293 N.C. 523 (1977) (questions by judge are permitted, but “if by their tenor, their frequency, or by the persistence of the trial judge they tend to convey the impression of judicial leaning, they violate the purpose and intent of [the statute] and constitute prejudicial error”); State v. Lea, 259 N.C. 398 (1963) (where judge interrupted attorney 8 to 10 times during a relatively short trial and posed approximately 50 questions to various witnesses, defendant’s right to a fair trial was violated and a new trial was ordered).
3. In the Jury’s Presence
   The prohibition against the judge expressing an opinion through his or her questioning of a witness applies only if the jury is present. See State v. Rogers, 316 N.C. 203 (1986), overruled on other grounds, 321 N.C. 570 (1988) (citing G.S. 15A-1222 and holding that the statute “is inapplicable when the jury is not present during the questioning”); State v. Gattis, 166 N.C. App. 1 (2004) ( “As these statutes make clear, the prohibition is inapplicable when, as here, the jury is not present.”)

Violations and Remedies

The question of whether there has been a breach of the “cold neutrality of the impartial judge” is determined by considering the probable effect of the improper questions or comments on the jurors, rather than the motive of the judge in asking the questions. State v. Johnson, 20 N.C. App. 699 (1974). The court’s broad discretionary power to control courtroom proceedings and the examination of witnesses means that a judge’s examination of a witness will not be disturbed on appeal, absent a manifest abuse of discretion. See State v. Rios, 169 N.C. App. 270 (2005); State v. Howard, 15 N.C. App. 148 (1972). However, if it is found that the trial judge engaged in questioning that might reasonably have had a prejudicial effect on the trial, the conviction will be reversed. See, e.g., State v. McEachern, 283 N.C. 57 (1973); State v. Oakley, 210 N.C. 206 (1936). The defendant bears the burden of showing any prejudice allegedly caused by the court’s questioning of a witness. See State v. Carmon, 169 N.C. App. 750 (2005).