§ 18.07 COMPETENCY OF JUDGE: FRE 605

• Jurisdiction: North Carolina

§ 18.07. COMPETENCY OF JUDGE: FRE 605

Federal Rule 605 disqualifies the trial judge as a witness. It covers only cases in which the judge is presiding; a judge is not an incompetent witness in other cases.⁵⁶ The policy underlying Rule 605 is obvious: Can the judge be impartial after testifying? Or appear impartial? What attorney wants to cross-examine the judge? Who will rule on objections?⁵⁷

Courts have extended Rule 605 to instances in which the judge does not take the witness stand⁵⁸ and to other court personnel — i.e., a law clerk making an unauthorized view of a traffic accident scene.⁵⁹ No objection is required to preserve the issue for appeal.⁶⁰

Occasion to invoke Rule 605 should arise rarely because, if the trial judge knows in advance of trial that she may be a witness, she should recuse herself.⁶¹

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Notes:

^[56] See also ABA Model Code of Judicial Conduct, Rule 3.3 ("A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.").

^[57] See Fed. R. Evid. advisory committee's note.

^[58] E.g., United States v. Nickl., 427 F.3d 1286, 1294 (10th Cir. 2005) (judge "added evidence when he told the jury he was convinced Steward [witness] intended to defraud the bank [because he had taken her plea]. The judge's comment did not summarize Steward's testimony, it reshaped it."); Lillie v. United States, 953 F.2d 1188, 1191 (10th Cir. 1992) (unauthorized view of traffic scene in bench trial); United States v. Pritchett, 699 F.2d 317, 318-19 (6th Cir. 1983) (when a prosecutor was unable to establish an individual was a convicted cocaine dealer, the presiding judge remarked that he had sentenced the individual).

^[59] E.g., Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d 593 (5th Cir. 1977) fudge's law clerk called to testify after he went to scene of the accident).

^[60] This provision is an exception to Rule 103(a)(1), which generally requires an objection or motion to strike to preserve an error for appellate review. The federal drafters explained: "The rule provides an 'automatic' objection. To require an actual objection would confront the opponent with a choice between not objecting, with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked...