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South Carolina
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RULE 614

RULE 614
CALLING AND INTERROGATION OF WITNESSES BY COURT

(a) Calling by Court. In extraordinary circumstances, 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. Before calling a court's witness, the court shall afford the parties a hearing on the matter outside the presence of the jury.

(b) Interrogation by Court. When required by the interests of justice only, the court may interrogate witnesses.

Note:

Subsection (a) is the federal rule modified in two respects. First, the phrase "[i]n extraordinary circumstances" was added to emphasize that under our adversarial system the decision whether to call a witness should generally be made by the parties, and the power of the court to call a witness ought to be sparingly used. The formulation of this rule differs from the rule established in State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991), although the circumstances in that case would be extraordinary circumstances justifying a court in calling a witness under this rule. Second, the federal rule was modified to require the court to afford the parties a hearing outside the presence of the jury before a witness is called by the court. This modification is consistent with prior case law. Id.; Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994). Allowing all parties to cross-examine a court's witness is also consistent with the prior case law. Riddle v. State, supra; State v. Anderson, supra.

Subsection (b) is the federal rule modified by adding the phrase "[w]hen required by the interests of justice only." This language was added to emphasize that this power, like the power to call a court's witness, should be used sparingly. If the court does interrogate a witness, the court must be careful not to intimate any opinion as to the force and effect of the testimony by its questions. Fowler v. Laney Tank Lines, Inc., 263 S.C. 422, 211 S.E.2d 231 (1975).

The federal rule contains a subsection (c) which may obviate the need for a timely objection to the calling of a court's witness or the interrogation of a witness by the court in certain circumstances. This provision is inconsistent with the law of South Carolina and was deleted. See State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991).