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PEOPLE v. BETTS
155 Mich. App. 478 (1986)
Michigan Court of Appeals.
Decided October 20, 1986.
We have been unable to find any discussion under MRE 614 relative to the issue in this case, and most of the discussion seems to be dealt with under FRE 614, which is identical to MRE 614. See 3 Orfield, Criminal Procedure Under the Federal Rules, § 26:167, p 462, which states: Some American cases have suggested that in some cases the judge in the interest of justice, may have a duty as well as the power to call witnesses, and may be reversed if he fails to do so. But the federal appellate courts have been unwilling to reverse on this ground. They hold that the exercise of the right to call a court's witness is a discretionary matter and that only for an abuse of that discretion resulting in prejudice to the defendant will a trial court be adjudged to be in error and a conviction reversed."[2] [Citations omitted.] While the issue in this case does not deal with the calling of an expert witness, this Court in People v Fisher,87 Mich.App. 350, 354; 274 N.W.2d 788 (1978), dealt with the court's sua sponte calling
of an expert to testify concerning a claim of insanity as a defense in that case. The Court, quoting People v Dickerson, 164 Mich. 148; 129 N.W.2d 199 (1910), indicated that, prior to the adoption of the Michigan Rules of Evidence, the court should not be involved in the selecting and appointing of witnesses, which would entirely change the character of criminal procedure and would seriously endanger safeguards under the constitution. The Court said in Fisher that, though prior to the adoption of MRE 706 the court was not permitted to call expert witnesses, MRE 706 clearly would allow such a procedure. In this case no constitutional question has been properly raised, and the trial judge very carefully indicated that defense counsel should have an opportunity to talk with the witness before the witness testified. The record further indicates that the witness had been indorsed but was waived by both sides, so defendant cannot now claim surprise which denied him a fair trial. Though MRE 614(c) says that "[o]bjections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present," MRE 614(a) does not contain a limitation as to the court's calling of witnesses only in a jury trial, and we cannot read the rule as limiting it solely to jury trials. We find that no error has been commited by the trial judge in this case. Affirmed.
* Circuit judge, sitting on the Court of Appeals by assignment.
1. See also Anno: Court's witnesses (other than expert) in state criminal prosecution, 16 ALR4th 352. There appears to be a split of authority, and no Michigan cases are cited.
2. See Smith v United States,331 F.2d 265 (CA 8, 1964), cert den 379 U.S. 824; 85 S.Ct. 49; 13 L Ed 2d 34 (1964), reh den 379 U.S. 940; 85 S.Ct. 321; 13 L Ed 2d 350 (1964); Estrella-Ortega v United States,423 F.2d 509 (CA 9, 1970); United States v Wilson,447 F.2d 1 (CA 9, 1971).
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