Rule:    22 NYCRR 100.2(C);
            Opinions 89-76 (Vol. IV); 90-26 (Vol. V);
            91-137 (Vol. VIII); 92-55 (Vol. IX);
            95-148 (Vol. XIII).
 
 
 

Opinion:

            A judge who witnessed an automobile accident has been asked by an attorney representing one of the litigants in the matter to provide an affidavit of facts addressing what the judge witnessed. The judge asks if it is permissible to provide the affidavit and, should the occasion arise, testify as a fact witness in the case, absent a subpoena.

            The Rules Governing Judicial Conduct prohibit a judge from testifying voluntarily as a character witness. 22 NYCRR 100.2(C). There is no Rule prohibiting a judge from testifying to facts regarding an accident witnessed by the judge or to providing a sworn account in an affidavit. While it is preferable that a judge who is asked to be a fact witness appear pursuant to a subpoena, there is no requirement that the judge be subpoenaed in order to testify as a fact witness. See Opinions 89-76 (Vol. IV); 90-26 (Vol. V); 91-137 (Vol. VIII); 92-55 (Vol. IX); 95-148 (Vol. XIII).