COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 9
Judge Testifying as a Character Witness.
A district judge in a multi-judge district has made inquiry relating
to the circumstances under which a judge should testify as a character
witness in a criminal trial in the judge's own district. The circumstances
giving rise to the inquiry are as follows: A state court trial judge of
the district in question is on trial on federal fraud charges. The defendant
proposes to ask one or more of the federal judges of the district to testify
as a character witness. These judges hold differing views as to the propriety
of such a judge or judges appearing as a witness, especially in the judge's
own district.
Canon 2 of the Code of Conduct for United States Judges, and the
Commentary thereto, provide valuable guidance. Canon 2 states, "[a] judge
should not testify voluntarily as a character witness." The Commentary
elaborates further on this advice:
The testimony of a judge as a character witness injects the
prestige of the judicial office into the proceeding in which the judge
testifies and may be misunderstood to be an official testimonial. This
Canon, however, does not afford the judge a privilege against testifying
in response to an official summons. Except 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.
The Committee believes that the practice of judges appearing as character
witnesses should be discouraged, but we agree that, if subpoenaed, a judge
must respond to the subpoena. If a judge testifies, we believe 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.
Moreover, to the extent that the trial court has discretion to limit
character evidence generally the trial judge should consider limiting the
number of judges appearing in such a role.
January 21, 1970
Revised January 16, 1998