September 14, 1999
As a matter of judicial ethics, a judge should comply with a valid subpoena
issued by a competent tribunal for the purpose of having the judge testify
as a character witness.
22 NYCRR 100.1; 100.2(A); 100.2(C);
CPLR Article 23; 2304;
Opinion 87-05 (Vol. I).
A judge has been subpoenaed to testify in an arbitration proceeding. Apparently one of the issues in the proceeding involves the credibility of a police officer. The judge asks if it is permissible to comply with the subpoena.
A subpoena is a process in which an individual is required to attend and give testimony at a proceeding. Failure to comply may subject the individual to penalties, including, potentially, contempt of court. CPLR Article 23.
The Rules Governing Judicial Conduct prohibit a judge from testifying voluntarily as a character witness. However, by complying with the subpoena, which mandates the judge to appear, the judge is not testifying voluntarily. 22 NYCRR 100.2(C); Opinion 87-05 (Vol. I). A judge has the obligation to maintain high standards of conduct and to respect and comply with the law. 22 NYCRR 100.1; 100.2(A). Accordingly, the judge should comply with a valid subpoena issued by a competent tribunal. The question of whether there are particular legal objections to the judge's testimony in this matter, is, of course, not before the Committee and is left to the parties, the judge and the tribunal.