FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-13
Date of Issue: august 23, 2021

ISSUES

1. May a judge provide a sworn statement pursuant to a written request from law enforcement investigating the conduct of a police officer that took place in the judge’s court during trial?

ANSWER: Yes.

2. Would receipt of this written request by the judge require recusal from future legal proceedings that will occur in the same ongoing case?

ANSWER: No, unless the judge determined that the request had created bias on the part of the judge affecting the judge’s ability to be impartial in future proceedings of the trial.

3. Does receipt of this written request create an obligation on behalf of the judge to disclose the request to the parties, or trigger a Brady Notification requirement?

ANSWER: Yes, a standard disclosure should be made, but the Committee makes no determination of requirements of a Brady Notification.

 

FACTS

The inquiring judge has been contacted via email by the Office of Inspector General (OIG) for a law enforcement/public safety department as part of an investigation into the conduct of a police officer that allegedly occurred during a trial before the judge. The exact nature of the conduct was not described, but may involve, at least partially, the testimony or conduct of the officer during the trial. Following a complaint filed by the State Attorney’s Office about the officer’s conduct, the OIG sought a sworn statement from the judge regarding factual events that took place during the trial proceeding. The judge now seeks guidance as to whether such sworn statement may be given, and whether receipt of the request requires recusal from further proceedings in the ongoing trial. Additionally, the judge asks if there are other ethical implications of this request that may compel disclosure, or an issuance of a Brady Notification to the defense counsel involved in the underlying trial.

 

DISCUSSION

This Committee has written extensively on the question of when a judge may or may not provide testimony in a variety of proceedings. In nearly all of those opinions, Canon 2B of the Code of Judicial Conduct was cited as it provides that:

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.

The Commentary to Canon 2B sets forth the reasoning for Canon 2B:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. 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.

Unfortunately, for many years this led to confusion over questions of judges offering testimony for a variety of reasons other than as a character witness. As a result, the Committee routinely opined that a judge should be under subpoena whether he or she is testifying as a character witness, or about factual issues. This, in turn, evolved into a general prohibition against a judge voluntarily giving testimonial statements, sworn or otherwise. In Fla. JEAC Opinion 98-15, the inquiring judge asked the Committee whether a judge could provide a non-subpoenaed voluntary statement to authorities conducting a criminal investigation of another. In that case, 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 friend. A majority of the Committee, with three members dissenting, concluded that a judge may only provide a statement to the authorities when properly subpoenaed. Similarly, in Fla. JEAC Opinion 00-07, the inquiring county judge had determined during a criminal suppression hearing that a police officer lied under oath. The officer's supervisor was conducting an internal investigation regarding the hearing in which the officer lied under oath. The inquiring judge asked whether he or she could voluntarily speak with the supervising investigator absent a proper summons. The Committee relying on Canon 2B opined that the judge should not speak to the investigator without a subpoena.

These decisions, however, led to the concern that such blanket restrictions put judges in the position of potentially obstructing law enforcement. The Committee finally rectified this situation in Fla. JEAC Opinion 03-04 with concise language.

The Committee at this time elects to overrule its opinions in 98-15 and 00-07. These opinions prevent judges from cooperating with entities such as law enforcement, the Florida Bar, and the Judicial Qualifications Commission when they are investigating matters. The Commentary to Canon 2B allows a judge to give information pursuant to a formal request to a sentencing judge or a probation or corrections officer. There is no difference in a judge giving information to an investigative entity upon a request and a judge giving information to a sentencing judge, a probation officer, or a parole officer upon request. In matters dealing with law enforcement, the judge could be viewed as obstructing justice if the judge refused to cooperate when he or she has relevant information and is requested to give this information. In matters dealing with investigations by the Florida Bar regarding attorney misconduct or the Judicial Qualifications Commission dealing with judicial misconduct, the judge has an ethical obligation to cooperate with these entities. See Fla. Code Jud. Conduct, Canon 3D(1), (2).

Given the Committee’s retreat from the requirement of subpoenas in all matters, the judge may meet and give a sworn factual statement to the OIG as part of its investigation into the officer’s conduct. Moreover, the mere receipt of the request for a statement from the OIG would not appear to necessitate a recusal, unless the judge believes that knowledge of the investigation removes the ability of the judge to be impartial in future proceedings in the case.  

Canon 3E requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. However, Canon 3B(1) equally requires the judge to hear and decide matters assigned to the judge, except those in which disqualification is required. [Emphasis supplied.] Thus, each judge has a duty to perform his or her duties without unnecessary disqualification. Canon 3B(1) recognizes the impact upon other litigants and other judges of unnecessary recusals and the danger of judge-shopping.

Finally, the judge asks if receipt of the request must be disclosed to the defense attorney in the underlying trial and future related proceedings. On several occasions, the Committee has opined that even when recusal would not be required by the Code, disclosure would be an appropriate and prudent course of action. As stated in the Commentary, each situation must be evaluated on a case-by-case basis. See Fla. JEAC Op. 01-17 (judicial disclosure appropriate when a party represented by a law firm that previously was represented by the law firm of the judge’s spouse in legal malpractice action, but recusal not mandated); Fla. JEAC Op. 05-05 (judge required to disclose prior attorney-client relationship with a litigant that appears before the judge); Fla. JEAC Op. 09-01 (recusal not required when judge took weekend trip to Maine nine years earlier, but disclosure was appropriate). Canon 3 provides, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . .” Fla. Code Jud. Conduct, Canon 3E(1). “The test is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.” Fla. JEAC Op. 92-39. Under the circumstances presented, the Committee believes disclosure of the interview request would be appropriate.

As part of the judge’s last question it was asked if disclosure of the OIG request might trigger an obligation of the judge pursuant to a “Brady Notification.” In criminal matters, a Brady Notification requires the State to disclose material information within its possession or control that is favorable to the defense.” Riechmann v. State, 966 So. 2d 298, 307 (Fla. 2007). As this appears to be a question of criminal law, the Committee makes no suggestion as to the implications or requirements it may impose on a judge, as we are limited to giving advice regarding matters of judicial ethics.

 

REFERENCES

Canon 2B, 3B(1), 3D(1)(2), 3E(1)
Fla. JEAC Op. 92-39, 98-15, 00-07, 01-17, 03-04, 05-05, and 09-01
Riechmann v. State, 966 So. 2d 298, 307 (Fla. 2007).

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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 of the committee.   See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

for futher information, contact Judge Nina Ashenafi-Richardson, Chair of the Judicial Ethics Advisory Committee, 301 S. Monroe Street, Room 265-B, Tallahassee, FL 32301 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel