Appearing as a Witness

March 19, 1998

CJE Opinion No. 98-6

You have asked this Committee to respond to six questions which arise out of a murder case involving a family with whom you have had a close personal and professional relationship. The accused and the murder victims were members of this family.

Your questions numbered 1 and 3 ask whether you may voluntarily appear as a witness in either the criminal trial proceedings or the disposition phase thereof on behalf of the defendant. The heading to Canon 2 states that a "judge should avoid impropriety and the appearance of impropriety in all of his activities" and Canon 2 (B) provides, in part, that "[a] judge should not lend the prestige of his office to advance the private interests of others." Testimony consisting of an objective report of what you saw or heard conflicts with neither of these provisions. Character testimony, however, is another matter in that it is more likely to be perceived by the public as lending the prestige of the judicial office in support of another. To the extent that any of your testimony would place you in the category of a character witness, you are precluded from voluntarily testifying both at trial and at any sentencing hearing. Canon 2 (B) clearly provides that a judge should not testify voluntarily as a character witness.

Your questions numbered 2 and 4 ask whether you may appear as a witness in either the criminal trial proceedings or the disposition phase thereof, if subpoenaed by counsel for the defendant. A judge is obligated to comply with a summons to testify. See In Re Fogan, 646 So.2d 191, 194 (1994). See also CJE Opinion 97-2 which states that no prohibitions are violated by a judge testifying at a formal dispositional hearing if he is subpoenaed to do so.

Your questions numbered 5 and 6 ask whether, should any of this Committee's responses to your queries be negative, you may, either by your own action or, with your approval, through counsel for the defendant, petition a single justice or the full Supreme Judicial Court for leave to act contrary to the Committee's advice. With respect to questions 5 and 6, nothing in Rule 3:09 precludes you from seeking an opinion that is contrary to our advice.