JI-61

December 12, 1992

SYLLABUS

Absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge's court.

References: MCJC 1, 2A, 2B, 3C; JI-57; MCR 2.003(B).

TEXT

A district court judge asks whether recusal is required if a witness in a case before the judge is a part-time police officer who also serves as full-time probation officer in matters before the court. As probation officer, the witness is an employee of the district court.

MCJC 3C provides that a judge should raise the issue of disqualification whenever there is cause to believe the judge may be disqualified. MCR 2.003(B) provides that "a judge is disqualified when the judge cannot impartially hear a case . . . ." MCJC 1 states:

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary. The provisions of this Code should be construed and applied to further those objectives."

MCJC 2A and 2B state:

1. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

2. A judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

There is no specific provision in court rules or ethics rules which addresses a judge's duty to raise a disqualification issue when the judge is otherwise acquainted with a witness.

In JI-57 the Committee addressed whether a judge would be recused when a judicial colleague from the same bench appeared as a witness in a proceeding pending before the judge. It was determined that, absent facts which show actual bias, a judge is not disqualified from a matter in which the judge is personally acquainted with a witness if the judge is not the trier of fact, or if the acquaintance/witness is not a necessary witness concerning a contested fact.

Probation officers are identified closely with the courts which they serve. In a criminal case the part-time police officer may well be a necessary witness for the prosecution, while the probation officer will have input regarding sentencing and probation in the event of conviction. The question which arises is whether on a contested issue the testimony of the police/probation officer would be perceived to be weighed more heavily than the testimony of other witnesses, or whether evidentiary rulings would be swayed by the fact that the witness is a probation officer for the court. Put another way, will there be an appearance that the judge has a predisposition to accept the testimony of the police officer before having an opportunity to hear the facts and arguments for the particular case?

We note that the judge seeks input from the probation officer on sentencing and probation matters on a regular basis. No question has been raised that this "regular relationship" and familiarity with the probation officer improperly influences the judge in making sentencing and probation decisions. If there is no appearance of bias in the judge regularly hearing the sentencing recommendations of the probation officer, there should be no increased likelihood of bias when the police officer testifies. Absent actual bias, there is no reason to expect that when the probation officer appears as a police officer/ witness, the testimony will be given any greater weight simply because the judge is familiar with the witness in another setting.

It has been suggested that a distinction should be made between cases in which the judge is the finder of fact and cases in which there is a jury. We see no reason for that distinction in this case. Cases in which the police officer will be testifying require proof "beyond a reasonable doubt"; sentencing matters in which the probation officer's input is sought have a much lower threshold. Defense counsel has an opportunity to impeach or otherwise discredit the testimony of the police officer/witness, and also has an opportunity to appeal adverse rulings of the judge. If the judge's reliance on the witness is an issue at all, there is less likelihood of abuse in the criminal case than in the sentencing stage.

Therefore, absent actual bias, a judge is not disqualified from presiding in a matter in which a part-time police officer who will be called as a witness is also a probation officer with the judge's court.