JI-41

October 1, 1991

SYLLABUS

A judge should not provide a character affidavit for a criminal defendant, because it is a sworn statement, not subject to cross-examination. A judge should decline to provide a personal or character reference for a criminal defendant, except in response to a formal request, unless the judge has good reason to believe that refusal would bring about a failure of justice.

References: MCJC 2A, C, D; Op 50; ABA Op 15.

TEXT

A judge asks whether a judge may provide a personal reference or character affidavit on behalf of a criminal defendant. MCJC 2 states:

"A. . . . A judge should avoid impropriety and the appearance of impropriety . . . .

". . .

"C. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not use the prestige of his office to advance the business interests of himself or others. He should not appear as a witness in a court proceeding unless subpoenaed.

"D. A judge may respond to requests for personal references."

Thus, although a judge is explicitly allowed to provide a reference when solicited, a judge may not allow the judicial office to be used for the private interests of others.

If the judge is being asked to provide the reference or affidavit solely because of the judge's position, the request should be declined. If, however, the judge has personal knowledge of the individual or the incident which is the subject of the request, and the knowledge is unrelated to the position which the judge holds, it is not improper to comply. Since a judge is prohibited from serving as a witness unless subpoenaed, the judge should refuse informal requests for affidavits which may be used in evidence.

The balancing of interests related to the question of a judge testifying as a character witness has been addressed in prior ethics opinions. ABA Op 15 states:

"There is nothing in the Canons of Judicial Ethics which prevents a judge from testifying as to the good character of a defendant in a criminal case, and the committee finds no inherent impropriety in such testimony. Cases can well be thought of, in which the cause of justice would be served by the testimony of a judge, not sitting in the trial, who believes the defendant is unjustly accused or is likely to receive a more severe sentence than he deserves, or appears likely to be a victim of circumstances or prejudice.

"It should be borne in mind, however, that a judge in so testifying is necessarily, to some extent, giving to the defense the weight of his judicial position and dignity. This is especially the case where the court is one in which the judge sometimes sits, or is a court of similar jurisdiction in the same place in which the judge holds court. Some of the jurymen may perhaps have served in other cases before him and may have taken his instructions as to the law when so serving. These considerations should be weighed, according to the circumstances, by a judge who is requested to so testify. He should consider well the propriety of testifying and determine whether his testimony is necessary and appropriate to give a fair trial to the accused, or is merely an attempt of the defense to throw into the scales the weight of his judicial position."

Op 50 states in part:

". . . In addition to the matters mentioned in ABA Op 15, there is the position of the prosecutor to be considered. To do his full duty in the pending case might require that he conduct a rigorous cross examination of the witness before whom, as judge, he may in the near future have to appear. Such situations should be avoided when possible.

"The conclusion of this Committee is that a judge should refuse voluntarily to testify under the circumstances stated, unless he has good reason to believe that such refusal would bring about a failure of justice."

Note that MCJC 2C prohibits a judge from appearing as a witness unless subpoenaed. Proposed Michigan Code of Judicial Conduct (1991) Rule 2 contains the same prohibition, and deletes the language in current MCJC 2D, allowing a judge to "respond to requests for personal references." The commentary following indicates:

"Although a judge should be sensitive to possible abuse of prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. However, a judge must not initiate a communication of information to a sentencing judge or a probation or corrections office, but may provide to such persons information for the record in response to a formal request."

This result is consistent with ABA Model Code of Judicial Conduct 1991, Canon 2B, which states:

"B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or other; 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.

"Commentary: . . . a judge must avoid lending the prestige of judicial office for the advancement of the private interests of others . . . a judge must not testify voluntarily as a character witness because to do so may lend the prestige of the 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."

Accordingly, a judge should not provide a character affidavit for a criminal defendant, because it is a sworn statement, not subject to cross-examination. A judge should decline to provide a personal or character reference for a criminal defendant, except in response to a formal request, unless the judge has good reason to believe that refusal would bring about a failure of justice.