FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

receded from in Op. 03-04

Opinion Number: 2000-07
Date of Issue: April 3, 2000

JUDGE MAKING A VOLUNTARILY STATEMENT REGARDING THE CHARACTER OF A LAW ENFORCEMENT OFFICER TO A SUPERVISING INVESTIGATING OFFICER

 

ISSUE

Whether a judge may give a voluntarily statement to a police supervisor who is conducting an investigating of an officer who has lied under oath before the judge? ANSWER: No. However, a judge may do so when properly summoned.

FACTS

At a criminal suppression hearing, a county judge found that a police officer lied under oath. The Assistant State Attorney reduced the charges to a lesser-included offense and the Defendant pled. Since the defendant plead to the reduced charges, the judge did not have to rule on the pending suppression issue. The State Attorney contacted the judge to inquire about the judge's feelings regarding the officer's credibility in future hearings. The judge informed the State Attorney that she would approach each case, independent of the hearing in question, on its own merits.

Sometime thereafter, the same officer testified at another suppression hearing. This time, the judge believed the officer's testimony was credible. The officer's testimony helped the Defendant to secure a not guilty verdict.

The officer's supervisor is conducting an internal investigation regarding the suppression hearing in which the officer lied under oath. The officer's supervisor wanted to speak with the judge regarding the matter, but the judge told the supervisor to read the transcript to review the officer's testimony along with the judge's comments. The supervisor insists on speaking with the judge due to concerns that future cases could be jeopardized due to the officer's credibility problem.

The inquiring judge asks whether he or she may voluntarily speak with the supervising investigator, absent a proper summons. The judge assures this committee that he or she can make decisions regarding the officer's testimony on a case-by-case basis.

DISCUSSION

Canon 2B of the Code of Judicial Conduct provides that a judge shall not testify voluntarily as a character witness and that a judge shall not lend the prestige of office to advance the private interests of another. It applies to all judges, including senior judges. See, Opinion 95-35; Application of the Code of Judicial Conduct (B). It specifically provides that:

A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. 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. [emphasis added]

The Commentary to Canon 2B provides, 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.

In the present case, we must resolve the issue of whether the judge may make any voluntary statements to the police investigators. The inquiring judge correctly advised the law enforcement investigator to refer to the transcript regarding any questions regarding the officer's statements and the judge's opinions of the officer's statements. A judge shall not testify voluntarily as a character witness since it would violate Canon 2B of the Code of Judicial Conduct.

In Opinion 98-15, the inquiring judge presented this committee with the question of whether a judge may provide a non-subpoenaed voluntary statement to authorities conducting a criminal investigation of another. A majority of this committee, with three members dissenting, concluded that a judge may only provide a statement when properly subpoenaed. The minority asserted a distinct difference between a judge appearing and giving testimony in a formal proceeding, and simply cooperating with "the authorities" in which case a subpoena would not be required. One member of the committee addressing the current inquiry disagrees with the majority conclusion. That member notes,

The Code of Judicial Conduct does not prohibit a judge assisting the police when they are investigating a violation of the law which the judge witnessed. Canon I requires a judge to uphold the integrity and independence of the judiciary by 'establishing, maintaining, and enforcing high standards of conduct.' Assisting the police as they investigate an officer who committed a crime would further the objective of Canon I. Also, Canon II requires that '[a] judge . . . respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.' Assisting the police as they investigate a crime implements this canon.

A majority of this committee concludes that a judge may not testify as a character witness without first being properly summoned.
This committee has consistently construed Canon 2B as requiring that any testimony of a judge be pursuant to a subpoena. Opinion 97-1. If the law enforcement internal investigators properly summon the judge to obtain his or her testimony in establishing that the police officer lied under oath, then the judge is compelled to give testimony absent unusual circumstances. As applied here, however, Canon 2B succinctly settles the issue: judges may testify only when properly summoned.

One member of this committee, while agreeing with this opinion, writes:

I think this inquiry gives the Committee an excellent opportunity to clarify Opinion 98-15. In that Opinion, the Committee found that a judge could not provide a voluntary statement to the authorities pertaining to its criminal investigation of the judge's family's friend. The Committee found that the judge could not provide the statement unless the judge was subpoenaed.
I believe that if a judge is simply a fact witness to an event, the judge can speak to law enforcement without a subpoena. An example would be if a judge witnesses a car accident. Opinion 98-15 seems to say that if a judge is simply a fact witness, the judge cannot talk to the police.
The ultimate decision in 98-15 was correct, as the judge in that Opinion was not being used as a fact witness; the judge was being used as a conduit to the police, because of the judge's position. I believe that, if the police question a judge because he/she is a judge, or a judge is questioned in an official proceeding, then the judge would need to be subpoenaed. However, if a judge is questioned simply because of something the judge witnessed, then a subpoena should not be necessary.
Again, I would suggest that the Committee consider [use this inquiry] to clarify Opinion 98-15 since Opinion 98-15 was absolutely correct on the specific facts as presented, but I would suggest that it is incorrect as a general course of conduct for judges.
REFERENCES

Florida Code of Judicial Conduct Canons 2, 2B.

Opinion 98-15 (Florida Supreme Court Judicial Ethics Advisory Opinion, July 13, 1998); 97-1 (Florida Supreme Court Judicial Ethics Advisory Committee); 95-35 (Florida Supreme Court Judicial Ethics Advisory Opinion, October 25, 1995)

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.

Participating Members: Graham, Attorney at Law and Judges Cardonne, C. Kahn, L. Kahn, Kotey, Levy, Rodriguez, Silverman, Smith, Swartz and Thompson.

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)