Judge As Witness

A judge may testify, if duly subpoenaed, in a court proceeding as to the weight of the evidentiary burden applied in a prior case, if otherwise admissible by the trial court judge.

A judge may not, according to the majority, testify if duly served with a subpoena as to the weight and impact of prior testimony of a witness in a prior case.  The minority answered yes, but only if ordered to do so by the trial court judge.

May a judge testify, if duly served with a subpoena, in a court proceeding as to the weight of the evidentiary burden applied in a prior case?

ANSWER:  The Committee concluded only if otherwise admissible.

May a judge testify, if duly served with a subpoena, in a court proceeding as to the weight and the impact of prior testimony of a witness in a prior case?

ANSWER: A majority of the Committee concluded “No”; four members of the Committee concluded “Yes, if ordered to do so by the trial court.”

The facts of this inquiry are unique and specific.  The historical facts that are significant to the inquiry are as follows: as a part of a domestic relations case, a judge (not the inquiring judge) ordered that the children have no contact with the mother.  The no-contact order was based on the representation that the therapist would testify that the children would be harmed by contact with the mother.  The inquiring judge was assigned the domestic relations case after the no-contact order was issued by the prior judge.

The inquiring judge then learned that the therapist had married the father, and the father committed perjury and other fraudulent acts while the inquiring judge was assigned the case.  Accordingly, the inquiring judge removed the children from the father’s care and ultimately the mother was reunified with the children and gained full custody.  The father entered into a deferred prosecution agreement with the State Attorney regarding his perjury and fraudulent acts.

The parties (mother, father, therapist and the therapist’s employer) are now involved in an entirely separate civil suit that relates to the therapist and her employer committing professional malpractice.  The attorney representing the mother seeks to subpoena the inquiring judge to elicit testimony regarding the significance of the evidentiary burden that a party must meet in order to secure a no-contact order in a domestic relations case, and the impact of the therapist’s testimony in the prior domestic relations case.

This Committee has written extensively on the question of when a judge may or may not provide testimony in a variety of proceedings. Those opinions rely upon Canon 2B of the Code of Judicial Conduct as it provides that:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

The Commentary to Canon 2B sets forth the reasoning for Canon 2B:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. 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 facts of the instant inquiry do not involve the potential for the inquiring judge to testify as a character witness, instead the inquiring judge’s testimony is sought to focus on the impact of certain testimony in a prior case in which the judge, or a predecessor judge, may have relied upon that testimony in reaching a decision. 

The Committee has dealt with a scenario involving a judge participating in a case in which perjured testimony had been presented.  In Opinion 2000-07, the Committee was posed the question of whether a judge could give a voluntary statement to a police supervisor who was investigating a police officer who lied under oath before the judge.  The Committee found that the statement would be allowed only if the judge was under subpoena.  However, that decision was overruled by the Committee in 2003-04, which found that Opinion 2000-07 would prevent a judge from cooperating with the investigatory actions of law enforcement, The Florida Bar, and the Judicial Qualifications Commission.  In 2003-04, the Committee went on to find “that non-testimonial interviews about factual matters, as long as they are not in violation of any other parts of the Code of Judicial Conduct, do not require a subpoena.”

The Committee in Opinion 2003-04 held that the Commentary to Canon 2B allows a judge to give information pursuant to a formal request to a sentencing judge or a probation or corrections officer but does not require a subpoena. There is no difference between a judge giving information to an investigative entity upon a request and a judge giving information to a sentencing judge, a probation officer, or a parole officer upon request.  To find otherwise would create a scenario in which the judge could be viewed as obstructing justice or failing to meet their ethical obligation to cooperate with these entities.  The Committee did point out that if either side requires a sworn statement from the Judge at a deposition, a trial, or otherwise, the Judge is required to be under subpoena pursuant to Canon 2B, since to do otherwise would be lending the prestige of judicial office to one side or the other in a matter.

In the instant case, the significant issue is not whether a party seeks a judge to provide a statement without a subpoena or testimony pursuant to a subpoena, but instead the focus is on the subject of the statement or testimony that the inquiring judge has been asked to provide. Specifically, the evidentiary burden that is required in order to have a no-contact order in a domestic relations case, and the weight and impact of the testimony of the father and possibly therapist in the prior case. 

Regarding the evidentiary burden that applied in a prior case, we are not addressing the admissibility of such testimony, but rather if a judge under subpoena would be prevented by the Florida Judicial Code of Conduct from testifying as to such.  While the Committee can opine multiple reasons why this testimony would not be otherwise admissible in any proceeding, we find that there are no Canons that are implicated in such testimony.

Regarding the specific weight or persuasiveness that a witness or witnesses’ testimony was given in a prior proceeding and the role that played in the judge or a predecessor judge’s decision to enter an order, the majority of the Committee points to the inherent function of our judicial system and the role of a judge in a family law case as the trier of fact.  Canon 3B(12) provides a judge “shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.”  Any testimony or evidence that is nonpublic cannot be disclosed whether under subpoena or not.  Additionally, as the prior case was a domestic relations case, the judge was sitting as both the trier of fact and of law.  The judge was required to consider all legally admissible evidence and render a decision.  The extent that the judge found some evidence, including testimony, to be more reliable than other evidence falls within the judge’s purview as the trier of fact.  Much like a jury in a criminal trial, the judge may not be required to testify about the weight he gave one piece of evidence once lawfully admitted.  By way of analogy, Florida Standard Jury Instruction 4.2 which is given upon the discharge of a jury states:

No juror can ever be required to talk about the discussions that occurred in the jury room, except by court order. For many centuries, our society has relied upon juries for consideration of difficult cases. We have recognized for hundreds of years that a jury’s deliberations, discussions, and votes should remain their private affair as long as they wish it. Therefore, the law gives you a unique privilege not to speak about the jury’s work.

The majority of the Committee finds that the Judicial Canons would prohibit the inquiring judge from testifying as to the persuasiveness of individual pieces of evidence that they based their order upon.

The minority position on this issue is that the focus should be on whether a judge under subpoena would be prevented by the Florida Code of Judicial Conduct from testifying as to such matters and not the admissibility of the elicited testimony.  The minority expressed concern that to answer “No” to the second question would possibly put the inquiring judge in the difficult position of refusing a court order.  The minority felt that: (1) the Canons do not forbid such testimony, and (2) refusal to abide by a court order would violate the Canons.  As such, the minority determined there are no Canons that are implicated in such testimony, if it is deemed admissible by a court of competent jurisdiction.

(Mike Frisch)