The trial judge may question witnesses called by any party.50 Judges generally feel freer to ask questions of witnesses in non-jury cases than in jury cases. This is for fear that, in jury cases, the jury will interpret the judge’s action as favoring one side or the other, threatening the jury’s impression of the judge as being impartial. As such, judges are cautioned, in jury cases, to keep questions to a minimum.50.1 

Further, the court, on its own motion or at the suggestion of a party, may call its own witnesses.51 This includes the discretionary authority to appoint neutral expert witnesses.52 If a court decides to appoint its own expert, the court should allow sufficient time to permit any hearings on the appointment of the expert, obtaining the consent of the expert, notification of the expert’s duties, research by the expert and the communication to the parties of the expert’s findings. The trial court may pick its own expert or seek a list of nominations from the parties. It is the duty of the trial judge to arrange for the court’s expert witness to testify if neither party calls that expert as a witness. The expert should be reasonably compensated by the parties in such proportion and at such intervals as the trial court determines. The trial court, however, is not required to accept the findings, conclusions or opinions of its neutral expert.53

The rule provides that parties may object to the calling and/or interrogation of witnesses by the court either at the time of the calling or interrogation or at the next available opportunity when the jury is not present.54 The reason for this provision is to relieve counsel of the embarrassment involved in objecting to questions of the judge in the presence of the jury.55 In addition to objections on grounds of relevancy, privilege and other evidentiary objections, a party may have a blanket objection if the judge assumes the role of an advocate instead of that of a partial referee.56

50. D.R.E. 614(c).

50.1. Lagola v. State, 867 A.2d 891, 898 (Del. 2005); Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1210-12 (Del. 2002).

51. D.R.E. 614(a).

52. In re Shell Oil Co., 607 A.2d 1213, 1222 (Del. 1992).

53. In re Shell Oil Co., 607 A.2d 1213, 1223 (Del. 1992). See also Comm. Pls. Ct. Civ. R. 28(a); Fam. Ct. Civ. R. 28(a).

54. D.R.E. 614(c).

55. See Fed. R. Evid. 614(c) advisory committee’s note.

56. See Fed. R. Evid. 614(b) advisory committee’s note.

© 2010  David L. Finger