Judicial Institution Could Be Tarnished If Judges Appeared as Character Witnesses

Judges have been prohibited from giving character testimony. The old Code of Judicial Conduct specifically prohibited a judge from testifying as to character. Under the new Code of Judicial Conduct that went into effect July 1, 2014, under Rule 1.3, a judge is to avoid use of the prestige of the judicial office. Under Subsection 2, a judge can provide a reference or recommendation for an individual based upon the judge’s personal knowledge. The judge is even allowed to use the official letterhead if the judge in the letter indicates that the reference is personal and if there is no likelihood the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office. If a judge is going to send a letter of recommendation for someone to a law firm that is appearing before the judge regularly, perhaps the judge should then reconsider or use private letterhead.

Rule 3.3 of the new code is entitled, “Testifying as a Character Witness.” But, there is no rule set forth and the rules only note that this section is “reserved.” But, the rule refers to Pennsylvania Rules of Judicial Administration, Rule 1701(e). (See Pennsylvania Rules of Judicial Conduct 3.3). Rule 1701(e) of the Rules of Judicial Administration states no judge can be subpoenaed or compelled to testify as a character witness unless the issuance of the subpoena shall have been specifically allowed by the Pennsylvania Supreme Court. Rule 1701(e) of the Rules of Judicial Administration states no judge or magisterial district judge shall testify voluntarily as a character witness. It notes that the provisions of this section shall constitute a canon of ethics for the purpose of Section 17 of the Judiciary Article of the Pennsylvania Constitution.