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July 7, 2000

 

The Honorable Scott Adams
The Municipal Court
City & County Division
Conway County Courthouse
Morrilton, AR 72110

Re: Advisory Opinion 2000-07

Dear Justice Adams:

You have asked whether a judge who has been subpoenaed to testify as a character witness may, if given the opportunity, submit an affidavit in lieu of live testimony. You note the applicability of Canon 2B which states in part that "[A] judge shall not testify voluntarily as a character witness."

The commentary to Canon 2B makes it clear that while judges may be called on to testify in the interests of justice, a judge should discourage a party from requiring the judge to testify as a character witness. The commentary reads in part:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the 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.

Your letter tells us nothing concerning the case or the mechanics of the affidavit, i.e., who is to prepare it or whether it is to be in question and answer form, etc. If it is contemplated that you are simply to compose a verified statement relative to the character or reputation of the litigant, it would, we believe, be little different from your writing a letter of recommendation and could impinge on the constraints of Canon 2B, notwithstanding the subpoena. In the absence of exceptional circumstances, we believe the preferred course in conformity with Canon 2B where a judge is compelled to testify as a character witness is for such testimony to be given verbally in the presence of the jury or fact-finder.

Sincerely,

 

 

Steele Hays

For the Committee

 

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