Attending Trial and Testifying in Litigation Involving Close Family Member

July 11, 2008

CJE Opinion No. 2008-4

You have requested an opinion from the Committee on Judicial Ethics regarding a possible trial involving a family member. Specifically, you have stated that a close family member is involved in emotionally-charged litigation in a Court Department other than the one in which you sit. The trial, if it occurs, involves family issues and both you and your husband may be called as witnesses. Your letter states that, if you are called, you assume that you "have no choice but to testify." In the event that you are not called as a witness, however, you have inquired about the propriety of your attendance at trial as a spectator.

Insofar as your testimony is concerned, the committee said in CJE Opinion No. 2001-2, "[a]ppointment to judicial office simply does not prevent a judge from giving relevant factual testimony in a judicial proceeding when he or she is competent to do so. That is particularly true when . . . the judge has particular knowledge of relevant matters that is unavailable from any other source." Nevertheless, if you are not subpoenaed, any testimony you give must be limited to factual matters, because Section 2B of the Code says that a judge "shall not testify voluntarily as a character witness in an adjudicatory proceeding."

Insofar as attendance as a spectator is concerned, CJE Opinion No. 2006-3 provides some guidance. There, when faced with the question as to whether a judge could attend as a spectator a clerk-magistrate's hearing on applications for criminal complaints involving a family pet, the committee said that the applicable provisions of the Code of Judicial Conduct were found in Canon 2, which is entitled "[a] Judge shall avoid impropriety and the appearance of impropriety in all the judge's activities." The committee continued by observing that section 2A provides in relevant part that, "[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The committee also observed that Section 2B states in relevant part that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others."

As in the situation that Committee discussed in 2006-3, application of the quoted code provisions turns on the appearances attendance at the trial are likely to create. On the one hand, you wish, understandably, to lend support to a family member in an emotionally trying situation. On the other hand, you do hold judicial office and members of the public, many of whom know very little about how the judiciary operates, may see in your attendance an attempt, at the very least, to signal to the presiding judge your relationship to a litigant in the matter pending before him or her in the hope that that relationship may play a positive role in the litigation's outcome.

In 2006-3, Committee concluded that unless the judge was likely to offer testimony, the judge should not attend the hearing. There, however, the committee noted that the hearing was to take place before a clerk-magistrate, whom many members of the public would view as a subordinate of the judge who wished to attend. Here, the trial is before a judge in a department different from the department in which you sit. In the committee's opinion, that difference reduces substantially the likelihood that a spectator, even one untrained in the judiciary's operation, would reasonably view your attendance, without more, as an attempt to influence the outcome. This is particularly true if reasonable people would likely expect to find close family members in attendance at the hearing and would understand that you were attending in your personal capacity.

That said, however, the line between permissible attendance to lend moral support to a family member under emotionally trying circumstances and impermissibly using, even inadvertently, the prestige of your office to advance the family member's interests remains a very fine one and your attendance would not be without substantial risks. In an effort to reduce those risks, you should not refer to yourself, or permit others to refer to you, as "judge" while you are in the courthouse, you should not interact with others in the courthouse in a way that reasonably conveys that you have the status of an "insider," and you should otherwise avoid any actions that a reasonable person might interpret as attempting to convey to the fact-finder your relationship to the family member involved in the litigation. While taking those steps may mitigate the risk that attendance as a spectator at an emotionally charged trial carries with it, the risk remains that trial dynamics may produce sudden and unexpected situations in which it is impossible to avoid an appearance that you are seeking to influence, even subtly, the outcome.

In sum, if you have relevant factual information, you may testify at the trial, but you may not voluntarily testify as a character witness. Insofar as attendance is as a spectator is concerned, the committee is of the opinion that, although the Code does not absolutely preclude your attendance, you must initial determine whether you can attend without creating the impression that your presence is seeking to influence the outcome. If you attend you must take every reasonable precaution to prevent the appearance that you are seeking to influence the outcome. If circumstances arise to create that appearance, it would be necessary for you to immediately leave the proceeding.