South Carolina vs. Federal Rules of Evidence, Take 2: No Delayed Objection to Judicial Interrogation

Yesterday, I noted how South Carolina Rule of Evidence 605 does not contain the “automatic” objection feature of Federal Rule of Evidence 605 when a judge “testifies” at trial. We can see a similar difference between Federal Rule of Evidence 614 and South Carolina Rule of Evidence 614.

Federal Rule of Evidence 614 reads as follows:

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

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

So, imagine that Ed and Fred are eyewitnesses to Vince’s murder. Dan is being prosecuted for that murder. For whatever reason, neither the prosecution nor defense calls Fred as a witness. Rule 614(a) allows the judge to call Fred as his/her own witness. Moreover, because Fred is the judge’s witness, the prosecution and defense both get to cross-examine him, meaning that both sides can ask leading questions.

Let’s say that the prosecution does call Ed to testify that he saw Dan kill Vince. Under Rule 614(b), the judge may interrogate Ed. The same would apply if the defense called Ed to testify that someone else killed Vince. 

Finally, Rule 614(c) dispenses with the rule that a party must contemporaneously object. This is similar to the “automatic” objection feature of Federal Rule of Evidence 605, but it still does require an objection, just not a contemporaneous objection. Instead, a party may wait to object until the next opportunity when the jury is not present. According to the Advisory Committee’s Note accompanying the Rule,

The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures. Compare the “automatic” objection feature of Rule 605 when the judge is called as a witness.

So, imagine that Dan calls Al as an alibi witness. After direct and cross-examination, the judge begins laying into Al for three hours, asking him about his failed marriages, his gambling problem, and his problems at work. Under Rule 614(c), defense counsel would not need to object to the judge’s overzealous interrogation in front of the jury; instead, he could wait until the jury is excused before objecting while still preserving the issue for appellate review.

By way of contrast, South Carolina Rule of Evidence 614 does not contain a subsection (c). According to the accompanying note,

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).

Therefore, in the Al interrogation mentioned above, defense counsel would need to contemporaneously object to the judge’s questioning and could not wait until the jury was excused.

-CM