906.14 Calling and interrogation of witnesses by judge. (1) CALLING BY JUDGE. The judge may, on the judge’s own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (2) INTERROGATION BY JUDGE. The judge may interrogate witnesses, whether called by the judge or by a party. (3) OBJECTIONS. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.
History: Sup. Ct. Order, 59 Wis. 2d R1, R202 (1973); 1991 a. 32; 1997 a. 181; 2001 a. 61. Under sub. (3), a circuit court has the authority to prevent an attorney from sharing with a nonparty witness who has yet to testify the testimony of prior witnesses during a recess, including barring a witness from reading a transcript of that testimony. State v. Copeland, 2011 WI App 28, 332 Wis. 2d 283, 798 N.W.2d 250, 082713.
History: Sup. Ct. Order, 59 Wis. 2d R1, R200 (1973); 1991 a. 32. A trial judge’s elicitation of trial testimony is improper if the cumulative effect of the judge’s questioning and direction of the course of the trial has a substantial prejudicial effect on the jury. Schultz v. State, 82 Wis. 2d 737, 264 N.W.2d 245 (1978). The practice of judicial interrogation is a dangerous one but does not require that no court should be allowed to call and question a witness prior to completion of the presentation of evidence. State v. Carprue, 2004 WI 111, 274 Wis. 2d 656, 683 N.W.2d 31, 02-2781.
History: Sup. Ct. Order No. 16-02A, 2017 WI 92, 378 Wis. 2d xiii. NOTE: Sup. Ct. Order No. 16-02A states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Judicial Council Note, 2017: This rule is adopted from the Uniform Rules of Evidence 616, which codifies United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L.Ed.2d 450 (1984). The rule codifies the common law in Wisconsin. See State v. Long, 2002 WI App 114, ¶18, 255 Wis. 2d 729, 647 N.W.2d 884 (“Wisconsin law is in accordance with the principle set forth in Abel.”). The committee viewed codification of the rule as useful, however, to reiterate that bias, prejudice, or interest of a witness is a fact of consequence under Wis. Stat. § 904.01. Further, the rule should make it clear that bias, prejudice, or interest is not a collateral matter, and can be established by extrinsic evidence. State v. Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337, 343 (1978) (“The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may be used to prove that a witness has a motive to testify falsely. . . . The extent of the inquiry with respect to bias is a matter within the discretion of the trial court.”).