May 22, 1978
Re: Canon 2 and 3
The Committee on Standards of Conduct Governing Judges acknowledges receipt of your recent inquiry wherein you advise that you have been requested to testify as an expert witness in a death case arising out of a parachuting accident; your question to the Committee being (1) whether you are, as a Judge, prohibited from testifying as an expert witness and (2) whether you are permitted to accept an expert witness fee.
No specific Canon appears to cover your inquiry. Canon 2B provides that a Judge "should not testify voluntarily as a character witness." By our opinion 76-9 this Committee, with one dissent, held that a Judge, formerly having been a practicing lawyer, may give an affidavit relative to matters exclusively within his knowledge pertaining to a case or proceeding in which he was involved as a lawyer, without the necessity of a subpoena. However, no compensation for the activity was contemplated in that opinion.
Canon 3C(1)(d)(iv) seems to contemplate that there are instances in which a Judge may be a witness; but again that provision would not appear to be applicable to you inquiry.
The participating members of the Committee, with one dissent, are of the view that although not specific Canon proscribes the anticipated conduct, nevertheless the spirit of the Canons would be violated by a Judge voluntarily appearing as an expert witness. The Committee is also of the view, with one dissent, that even were a Judge to voluntarily appear as an expert witness he should not accept an expert witness fee.
We hope that this opinion may be of assistance to you.
Tyrie A. Boyer, Chairman
Committee on Standards of Conduct Governing Judges
Participating members: Judges Boyer, Carlisle, Haverfield, Letts, O'Connell, Stephenson, Turner and Samuel J. Powers, Attorney