Judicial Ethics Advisory Committee issues opinion on judges testifying in court
Florida’s Judicial Ethics Advisory Committee issued an opinion clarifying the conditions under which judges may testify in court.
Acting July 23 in Opinion Number 2024-09, the advisory panel addressed two issues involving judges and their participation in court proceedings outside of their judicial duties, holding:
- A judge may testify if duly served with a subpoena concerning the weight of the evidentiary burden applied in a prior case, provided the testimony is otherwise admissible. The decision clarifies that judges can be called upon to discuss the standards of evidence that were considered in previous rulings, as long as the testimony meets the admissibility criteria set by the court.
- A judge may not testify about the weight or impact of prior testimony given by a witness in a previous case. The majority emphasized that such testimony would interfere with the judicial role of evaluating evidence and could violate the principle of non-disclosure of nonpublic information acquired in a judicial capacity. However, a minority of the committee (four of the 11 members) opined that judges could provide such testimony if ordered by a court.
The JEAC said the facts of this inquiry are “unique and specific” and arose from a complex domestic relations case where an inquiring judge took over after a no-contact order was issued by a predecessor. 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 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.
In an unrelated civil malpractice case involving the therapist, the mother’s attorney sought 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.
The JEAC says the significant issue is not whether a party seeks a judge to provide a statement without a subpoena or testimony pursuant to a subpoena. 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 required 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,” the opinion said. “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 pointed to “the inherent function of our judicial system and the role of a judge in a family law case as the trier of fact.”
The committee said 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,” the majority said. “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.”
The majority found 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 on.
The minority, however, said 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 opinion said. “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.”
The Judicial Ethics Advisory Committee is charged with rendering advisory opinions to judges and judicial candidates on the application of the Code of Judicial Conduct to their circumstances. While judges and candidates may cite the opinion as evidence of good faith, the opinions are not binding on the Judicial Qualifications Commission.
