Overruled by Opinion 03-04
Opinion Number: 98-15
Date of Issue: July 13, 1998
JUDGE PROVIDING A NON-SUBPOENAED VOLUNTARY STATEMENT TO AUTHORITIES CONDUCTING A CRIMINAL INVESTIGATION OF ANOTHER
May a judge provide a non-subpoenaed voluntary statement to authorities conducting a criminal investigation of another? ANSWER: A majority of the committee believes that a judge may only provide a statement when properly subpoenaed. A minority of the committee believes that there is 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.
The authorities contacted the inquiring judge and requested that the judge provide a voluntary statement pertaining to its criminal investigation of the judge's family's friend. The judge is aware of facts that may exculpate the target of the investigation.
The judge questions whether he/she may provide a statement to the authorities without the necessity of a subpoena.
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.
This committee has consistently construed Canon 2B as requiring that any testimony of a judge be pursuant to a subpoena. Opinion 97-1 (A judge who will be called to testify as a fact witness in a bar disciplinary proceeding may testify only pursuant to a subpoena.); See also, Opinion 95-35 (A majority of the committee concluded that a subpoenaed judge could testify as an expert witness on attorney's fees.); Opinion 95-32 (Canon 2B prohibits a judge from testifying voluntarily in a bar grievance proceeding that is somehow connected to a motion to recuse. A majority of the committee responding were of the opinion that the judge could testify if properly summoned.); Opinion 93-31 (A judge should testify if properly served with a subpoena in a criminal case, even though the judge is not appearing as a character witness or as an expert witness for a fee.); Opinion 90-2 (A judge may not appear voluntarily to testify in connection with Florida law at a civil trial to be conducted in England.).
Three members of this committee disagree with the majority. It is their opinion that there is a distinct difference between a judge appearing and giving testimony in a formal proceeding and simply cooperating with "the authorities" in a criminal investigation. Further, they do not believe that the source of the information is relevant or that it may be exculpatory or inculpatory as to the judge's friend. They reason that since police agencies have no authority to issue subpoenas, the majority's opinion authorizes a judge to impede a criminal investigation using the Code as a shield.
One of the minority members noted that the committee's "past opinions addressed giving testimony under oath in a formal proceeding, rather than cooperating with police authorities."
Accordingly, a majority of the committee believes that the inquiring judge is ethically precluded from providing a statement to the authorities conducting the criminal investigation, unless first properly subpoenaed. A minority of the committee believes otherwise.
Florida Code of Judicial Conduct Canon 2B.
Florida Judicial Ethics Advisory Committee Opinions: 97-1; 95-35 (October 25, 1995); 95-32 (September 15, 1995); 93-31 (May 20, 1993); 90-2 (February 14, 1990).
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, Opinion No. 90,133 (Fla. September 4, 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 Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.
Participating Members: Judges Cardonne, Dell, Charles Kahn, Lisa Kahn, Patterson, Rodriguez, Rushing, Silverman, Tolton and Attorney Blanton
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of judge deleted from this copy)