Chapter 6 - § 6.5 • JUDGE AS WITNESS

• Jurisdiction: Colorado

§ 6.5 • JUDGE AS WITNESS

Colorado

➢ General. "The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." CRE 605.

➢ Scope. A judge is not disqualified by his or her office from testifying in a case in which he or she is not sitting as a judge. People v. Tippett, 733 P.2d 1183, 1193 (Colo. 1987). However, a judge should not testify voluntarily as a character witness. Id. at 1194 (quoting from Colorado Code of Judicial Conduct Canon 2, § B).

Federal

➢ General. "The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue." FRE 605. In re McCarthey, 368 F.3d 1266, 1270 (10th Cir. 2004) (judge may not be witness in case over which he or she presides). Because FRE 605 provides that it is not necessary to object to preserve the point, the matter may be raised for the first time on appeal. United States v. Paiva, 892 F.2d 148, 158, n. 8 (1st Cir. 1989); accord United States v. Nickl, 427 F.3d 1286, 1293 (10th Cir. 2005).

➢ Duty of Court. Although a judge may comment on the proceedings, he or she may not assume the role of witness or distort or add to testimony. Quercia v. United States, 289 U.S. 466, 470 (1933).

His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards

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