Does naming a judge as a possible witness in the pending case itself require recusal?

Plain-English summary

A judge heard a civil case involving alleged damage to an attorney’s character. Interrogatory responses named every circuit judge and many local lawyers as people who might know about that damage. The judge said there was no relevant personal knowledge.

The Commission distinguished a judge who may be a material witness or has personal knowledge of evidentiary facts from one merely listed by a party. It cited Callahan v. State and its discussion of material-witness status. It said a litigant could not force disqualification during a case simply by alleging that the judge might testify.

If the judge truly had no personal knowledge of the case facts, the Commission strongly recommended a specific finding to that effect on the record.

Currency note

This opinion was issued in 1992, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Does listing the judge as a potential witness automatically disqualify the judge?

A: No. The Commission said that allegation alone during pending litigation does not require disqualification.

Q: When does witness status require recusal?

A: The opinion describes disqualification where the judge knows relevant evidentiary facts or may be a material witness.

Q: What record did the Commission recommend?

A: A specific finding that the judge had no personal knowledge of the facts, if that was true.

Background and rules framework

The opinion addresses the material-witness and personal-knowledge grounds for judicial disqualification. It discusses Callahan v. State and a judicial-disqualification treatise without citing a numbered Alabama Canon in its own analysis.

Citations and references

Cases:

• Callahan v. State, 557 So.2d 1292, 1307-1308 (Ala.Cr.App.), affirmed, 557 So.2d 1311 (Ala. 1989): material witness analysis.
• Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934): material witness definition quoted through Callahan.

See also

• AL Judicial Ethics Op. 92-458: Judge as Witness in Separate Case

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 92-453
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

92-453
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
August 21, 1992
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. You question whether you should disqualify yourself under the following situation. You are presently presiding over civil litigation involving an allegation of character damages suffered by an attorney who was named as a defendant in a lawsuit which was subsequently decided in his favor. In response to interrogatories, the defendant has named each circuit judge in the judicial circuit and practically every attorney practicing in that circuit as persons who might have knowledge of the damage to the attorney’s character. You state you “have absolutely no knowledge relevant to the question asked and do not feel that it would give [you] any difficulty in continuing. “Disqualification is required, when a judge, to his or her knowledge, may be a material witness in a proceeding.” L. Abramson, Judicial Disqualification Under Canon 3 of the Code of Judicial Conduct 121 (American Judicature Society, 2nd ed. 1992). “A judge is disqualified if he or she has prior personal knowledge of evidentiary facts regarding a proceeding before the judge.” Judicial Disqualification at 114. In Callahan v. State, 557 So.2d 1292, 1307-1308 (Ala.Cr.App.), affirmed, 557 So.2d 1311 (Ala. 1989), the Alabama Court of Criminal Appeals noted: “In construing a Florida statute providing for the disqualification of a trial judge based on, among other grounds, the fact that the judge is a material witness, the Florida Supreme Court held that a ‘material witness’ is ‘a witness who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify.’ Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934) (emphasis added). From Wingate, it follows that where the trial judge is not a material witness under this definition, there is not error in the trial court’s failure to recuse. Courts in other jurisdictions have adopted this view.” Furthermore, a litigant may not require the disqualification of a judge presiding over the litigation merely by alleging during the course of that litigation that the judge may be a potential witness. The Commission strongly recommends that you make a specific finding on the record that you have no personal knowledge of the facts involved in this case if that, in fact, be true. 92-453 Page 2 This advisory opinion has been approved by the Commission. Please contact me if you have any questions regarding this or any other matter.