2012-31 (October 17, 2012)
Testimony of Judge; Character Witness
Rules 1.2, 1.3, 3.2 & 3.3
A Judicial Official has been subpoenaed to testify as a fact witness at an administrative hearing regarding a personnel matter involving a close personal friend. The Judicial Official, if permitted to testify, will advise the administrative hearing panel that the Judicial Official is appearing in his or her personal capacity. The Judicial Official has inquired whether he or she (1) may testify to factual matters, and (2) if asked, may respond to questions about the friend’s character.
Additional Facts: The Judicial Official has known the friend for many decades and perhaps knows the friend better than anyone else. The Judicial Official was advised that counsel for the friend would only elicit factual testimony regarding the friend’s health, levels of activity, discussions they had relevant to the administrative proceeding and related matters.
Response: Rule 1.2 of the Code states in relevant part that a judge “should act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
Rule 1.3 of the Code states that a judge “shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.” The commentary to Rule 1.3 states that “[a] judge may provide a reference or recommendation for an individual based on the judge’s personal knowledge.” Rule 1.3, cmt. (2)
Rule 3.2 of the Code provides that “[a] judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or legislative body or official,” subject to certain exceptions not implicated here. The commentary to Rule 3.2 provides in part that “it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens,’ and that “[i]n engaging in such activities, however, a judge should state affirmatively that the judge is not acting in his or her official capacity and must otherwise exercise caution to avoid using the prestige of judicial office.” Rule 3.2 cmt. (3).
Rule 3.3 provides that “[a] judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.” The commentary to Rule 3.3 makes clear that a judge may not testify as a character witness unless duly summoned and that “[e]xcept in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.” Rule 3.3 cmt. Rule 3.3 places no limitation on a judge’s testimony as a fact witness in any proceeding.
Based on the facts presented, including that the Judicial Official has been duly summoned by compulsory process and that the Judicial Official has unique knowledge of facts relevant to the proceeding based upon personal observations over many years due to the length of friendship with the person subject to the personnel matter at issue, the Committee determined that the Judicial Official may testify as to factual matters at the administrative hearing provided that the Judicial Official makes clear at the start of his or her testimony that he or she (1) is present pursuant to a subpoena, and (2) is present only in his or her personal capacity. The Committee further determined that based on the facts, which present unusual circumstances within the meaning of the Comment to Rule 3.3, the Judicial Official may testify, if asked, about the friend’s character and the Judicial Official does not have a duty to seek to discourage the parties from inquiring of the Judicial Official about the friend’s character.