Section 614. Calling and Interrogation of Witnesses by Court or Jurors

(a) Calling by Court. When necessary in the interest of justice, 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 question a witness in order to clarify an issue, to prevent perjury, or to develop trustworthy testimony, provided that the judge remains impartial.

(c) Objections. Objections to the calling or questioning of witnesses by the court may be made outside the presence of the jury.

(d) Interrogation by Jurors. The court, in its discretion, may allow questions posed by the jury, subject to the following procedures:

(1) The judge should instruct the jury that they will be given the opportunity to pose questions to witnesses.

(2) Jurors’ questions need not be limited to important matters, but may also seek clarification of a witness’s testimony.

(3) The judge should emphasize to jurors that, although they are not expected to understand the technical rules of evidence, their questions must comply with those rules, and so the judge may have to alter or to refuse a particular question.

(4) The judge should emphasize that, if a particular question is altered or refused, the juror who poses the question must not be offended or hold that against either party.

(5) The judge should tell the jurors that they should not give the answers to their own questions or questions by other jurors a disproportionate weight.

(6) These instructions should be given before the testimony begins and repeated during the final charge to the jury before they begin deliberations.

(7) All questions should be submitted in writing to the judge, with the juror’s identification number included on each question.

(8) On submission of questions, counsel should have an opportunity, outside the hearing of the jury, to examine the questions with the judge, make any suggestions, or register objections.

(9) Counsel should be given an opportunity to reexamine a witness after juror interrogation with respect to the subject matter of the juror questions.

NOTE

Subsection (a). This subsection is derived from Quincy Trust Co. v. Taylor, 317 Mass. 195, 198, 57 N.E.2d 573, 575 (1944). See also Henry T. Lummus, The Trial Judge 19–21 (Chicago, The Foundation Press 1937).

Subsection (b). This subsection is derived from Commonwealth v. Lucien, 440 Mass. 658, 664, 801 N.E.2d 247, 254 (2004), and Commonwealth v. Fitzgerald, 380 Mass. 840, 846–847, 406 N.E.2d 389, 395–396 (1980). See Commonwealth v. Festa, 369 Mass. 419, 422, 341 N.E.2d 276, 279 (1976) (“There is no doubt that a judge can properly question a witness, albeit some of the answers may tend to reinforce the Commonwealth’s case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant’s guilt.”); Commonwealth v. Fiore, 364 Mass. 819, 826–827, 308 N.E.2d 902, 908 (1974) (“The judge has a right, and it is perhaps sometimes a duty, to intervene on occasion in the examination of a witness. . . . Here a discrepancy appeared between the proffered testimony and earlier testimony of the same witnesses. A likely possibility existed that each witness would perjure himself or admit to perjury in his prior statement. As this became evident to the judge, he indulged in no transgression when for the benefit of the witness and to aid in developing the most trustworthy evidence he took a hand in indicating to the witness the extent of the inconsistencies. In this case the questioning by the judge was not clearly biased or coercive.” [Citations omitted.]). See also Commonwealth v. Hanscomb, 367 Mass. 726, 732, 388 N.E.2d 880, 885 (1975) (Hennessey, J., concurring) (“The judge need not be mute; he is more than a referee. Justice may require that he ask questions at times. However, the primary principle in jury trials is that he must use this power with restraint.”). Compare Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74, 823 N.E.2d 404, 407 (2005) (trial judge’s questions were appropriate because they helped to clarify the testimony), with Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810–811, 668 N.E.2d 357, 359–361 (1996) (judge’s cross-examination of defense witnesses “too partisan” and lacked appropriate foundation).

Subsection (c). This subsection is derived from Commonwealth v. Fitzgerald, 380 Mass. 840, 846, 406 N.E.2d 389, 395 (1980). Despite “the natural reluctance of trial counsel to object to questions or comments coming from a judge, sometimes trial counsel’s duty to protect his client’s rights requires him to object, preferably at the bench out of the jury’s hearing.” Id. Where a party fails to object at trial to questions by the judge, any error by the trial judge is reviewed for a substantial risk of a miscarriage of justice. Commonwealth v. Gomes, 54 Mass. App. Ct. 1, 5, 763 N.E.2d 83, 85 (2002).

Subsection (d). This subsection is taken nearly verbatim from Commonwealth v. Britto, 433 Mass. 596, 613–614, 744 N.E.2d 1089, 1105–1106 (2001). See also Commonwealth v. Urena, 417 Mass. 692, 701–703, 632 N.E.2d 1200, 1206 (1994). In addition to the procedures outlined in Subsection (d), the judge should instruct the jury “not to let themselves become aligned with any party, and that their questions should not be directed at helping or responding to any party”; the judge should also instruct the jurors “not to discuss the questions among themselves but, rather each juror must decide independently any questions he or she may have for a witness.” Commonwealth v. Britto, 433 Mass. at 613–614, 744 N.E.2d at 1105. Upon counsels’ review of the submitted questions, “[t]he judge should rule on any objections at [that] time, including any objection that the question touches on a matter that counsel purposefully avoided as a matter of litigation strategy, and that, if asked, will cause particular prejudice to the party.” Id. at 614, 744 N.E.2d at 1105–1106. Finally, the scope of the reexamination of the witness after juror interrogation “should ordinarily be limited to the subject matter raised by the juror question and the witness’s answer. The purpose of reexamination is two fold. First, it cures the admission of any prejudicial questions or answers; and second, it prevents the jury from becoming adversary in its interrogation.” (Citation omitted.) Id. at 614, 744 N.E.2d at 1106.