The Key Difference Between Federal Rule of Evidence 614(a) and its Tennessee Counterpart

Federal Rule of Evidence 614(a) provides that 

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

The ability of the judge/court to call witnesses in more circumscribed under Tennessee law. Pursuant to Tennessee Rule of Evidence 614(a),

The court may not call witnesses except in extraordinary circumstances or except as provided for court-appointed experts in Rule 706, and all parties are entitled to cross-examine witnesses thus called.

So, what does this difference mean in practice?

Imagine that Dana is on trial for murdering Victoria and calls Alice, Betty, and Carla as alibi witnesses. All three of these alibi witnesses testify that they were at Dana’s house, watching a movie with her from 9-11pm, with the murder occurring 30 miles away at 10:30pm. Moreover, assume that Alice, Betty, and Carla all testify to Dana’s neighbor, Nancy, stopping by about half an hour into the movie, at approximately 9:30; however, neither the defense nor the prosecution calls Nancy as a witness.

Under Federal Rule of Evidence 614(a), the court could be curious about what Nancy would have to say and could call her as a witness to get her testimony. On the other hand, “extraordinary circumstances” do not seem to be present, meaning that the judge would likely lack authority to call Nancy as a witness if the trial were being held in Tennessee.

I couldn’t find much case law on the Tennessee rule. I only found five cases citing the rule in Westlaw, with four of them being unreported. The case that seemed to dig into the rule the most was Thompson v. Thompson, 2009 WL 3448748 (Tenn. App. 2009). Thompson was a post-divorce action regarding child support and custody in which the judge called a witness to calculate child support.

In finding this was erroneous, the Court of Appeals of Tennessee held that

In the case now before us, the Trial Court obtained documentary evidence from Ms. Hunter that was used by the Trial Court in calculating child support. No extraordinary circumstances were shown which would have allowed for such a sua sponte investigation. Although Mother had issued a subpoena to Ms. Hunter, Mother had chosen not to call Ms. Hunter as a witness at trial. No foundation was laid to allow the introduction of the evidence that Ms. Hunter provided to the Trial Court post-trial. Neither party was given the opportunity to question or cross-examine Ms. Hunter with regard to this evidence. Father’s only response to Mother’s argument as to this issue on appeal is that he “has no issue with the court acquiring information from Mrs. Hunter.”

Given all this, we find that the sua sponte investigation was undertaken in error even though done with the best of intentions.

-CM