September 15, 1988

The Ethics Advisory Committee has been asked for its opinion on the question of whether a justice of the peace may testify as a character witness for the defendant in a criminal proceeding.

It is the committee's opinion that the answer is no, unless the justice of the peace has been subpoenaed to testify.

A judge may he called as a witness,but not in a trial over which he is presiding. Utah Code Ann. 78-24-3. Utah Rule of Evidence 605. The judge is not disqualified by virtue of his or her office from testifying. McCormick on Evidence section 68 p. 164 (3d ed.).

Canon 2(B) or the Code or Judicial Coduct provides in part:

A judge should not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life.

Canon 2B of the American Bar Association's Code of Judicial Conduct also states that a judge should not testify voluntarily as a character witness. The Commentary after Canon 2B states:

The testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies and may be misunderstood to be an official testimonial. This Canon, however, does not afford him a privilege against testifying in response to an official summons.

Formal Opinion No. 15 of the American Bar Association Committee on Professional Ethics discussed the question of whether there was any impropriety in a judge testifying, in criminal cases, as to the good character of a defendant. The Committee stated:

There is nothing in the Canons of Judicial Ethics which prevents a judge from testifying as to the good character of a defendant in a criminal case and the committee finds no inherent impropriety in such testimony. Cases can well be thought of, in which the cause of justice would be served by the testimony of a judge, not sitting in the trial, who believes the defendant is unjustly accused or is likely to receive a more severe sentence than he deserves, or appears likely to be a victim of circumstances or prejudice.

It should be borne in mind, however, that a judge in so testifying is necessarily, to some extent. giving to the defense the weight of his judicial position and dignity. This is especially the case where the court is one in which the judge sometimes sits, or is a court of similar jurisdiction in the same place in which the judge holds court. Some of the jurymen may perhaps have served in other cases before him and may have taken his instructions as the law when so serving. These considerations should be weighed, according to the circumstances, by a judge who is requested to so testify. He should consider well the propriety of testifying and determine whether his testimony is necessary and appropriate to give a fair trial to the accused, or is merely an attempt of the defense to throw into the scales the weight of his judicial position.

Similarly, Advisory Opinion No. 9 of the Interim Advisory Committee on Judicial Activities finds that the practice of judges appearing as character witnesses should be discouraged, but that if subpoenaed, a judge must respond to the subpoena. The Committee stated:

If he testifies, we feel that some of the otherwise unfortunate effects from the giving of such testimony would be dissipated if the trial judge made certain that, either on direct or cross-examination, it was made clear that the judge witness was testifying in response to a subpoena.

In People v. Tippett 733 P.2d 1183 (Colo. 1987), the Colorado Supreme Court considered whether it was error to allow a judge who presided over a divorce action to testify as to his opinion of the defendant's (a party to the divorce) character for truth and veracity in a subsequent proceeding. The court found that under Colorado law, there is no statutory prohibition against a judge testifying as a witness in a cause not on trial before him. The court stated that generally, a judicial officer called to the stand in a case in which he is not sitting as a judge is not disqualified by his office from testifying. The Colorado court cited Canon 2, section B of the Colorado Code of Judicial Conduct which is identical to the same ABA code provision. Because the record in Tippett was devoid of reference to a subpoena for the judge's testimony, the court was unable to determine the voluntariness of the judge's character testimony.

In United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979), character testimony by a judge was also addressed. In that case, the judge was under an official subpoena, but the trial judge questioned the witness to determine whether the subpoena was merely an excuse concocted to legitimize what was really a voluntary appearance. The trial judge left the decision up to the testifying judge to decide whether he should testify in the case. The judge left the court without testifying. The appellant argued on appeal that the court intimidated the judge and deprived the defendant of a valuable character witness. The Court of Appeals held that the trial court had no power to bar the judge from testifying under a subpoena since the subpoena was legal and valid on its face and, as an official summons, it absolved and insulated the judge from any violation of the Judicial Canons. The court noted that, as a practical matter, the judge's testimony would have had to have been "voluntary", subpoena or no subpoena, since the defendant could command the witness' appearance, but could not force the witness to speak well of him. The court added that the trial judge's concern about the possibility of an impropriety on the part of the testifying judge should have been handled by the initiation of appropriate action before local bar authorities.

In the letter requesting this committee's opinion, the justice of the peace states: "I have been asked by (the defendant's attorney) to be a character witness for (the defendant)." The letter does not make it clear that the justice of the peace has been subpoenaed to testify for the defendant. To comply with Canon 2, the justice of the peace must be testifying pursuant to a subpoena.

It is the committee's opinion that a judge should not testify as a character witness for a criminal defendant in a trial unless the judge has been subpoenaed. The giving of such character testimony by judges should be discouraged, and is appropriate only where a subpoena makes it unavoidable.