Rule 605 Competency of Judge as Witness

• Jurisdiction: Arizona

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.

Comment

The trial judge may not testify in that trial as a witness.[1] To do so is fundamental error, and no objection is necessary to preserve the issue for appeal. This rule is supported by the Arizona Constitution, which provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law."[2] This rule does not prohibit the judge from testifying about factual matters in a subsequent trial or hearing.[3]

The trial judge should strictly limit contact and communication with the jurors out of the presence of the attorneys,[4] but a party must object to such contact or communication as soon as possible or else will waive any claim of error.[5]

Cases

605.010 A judge presiding at a trial may not testify in that trial as a witness, thus if the judge has personal knowledge of a disputed evidentiary fact or may be a material witness in the proceeding, the judge should disqualify him- or herself.

State v. Fisher, 176 Ariz. 69, 859 P.2d 179...