Whether a judge may testify on behalf of
a former associate who faces sentencing
in another state

The inquiring judge wishes to testify at the sentencing hearing of a former associate who faces sentencing in another state for a serious felony. The judge states he has been close friends with this person for over thirty years and feels he could enlighten the sentencing judge as to his friend's background. The inquiring judge "would very much like to testify at the sentencing hearing." The inquiring judge states that he doesn't know if he could be properly served here with foreign process to compel his attendance at the sentencing.

The Committee directs the inquiring judge to opinion 97-7 (a copy of which is attached to the judge's copy of this opinion) which recites the case law concerning a judge's testimony during the sentencing process. Under the authorities cited in opinion 97-7, the inquiring judge may not testify voluntarily. According to the commentary to Canon 2B, "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." Unless the judge can be compelled to testify in the sentencing state, he should not appear. Even if his friend seeks to compel his attendance, the judge is obligated under the Code to discourage this, unless the judge has information or insight that cannot be obtained from any other source.

One member of the Committee feels that there should be more room for individual discretion in the type of matter described by the inquiring judge. This member suggests that a Florida judge who is called to another state to testify about matters of personal knowledge "could hardly experience the dangers expressed in the last paragraph of the commentary to Canon 2B."

The 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 issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Dated the 19th day of August, 1997.

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki

cc: All Committee Members
Justice Charles T. Wells
Office of the State Courts Administrator (name of judge deleted from this copy)