May a Vermont judge help reconstruct a trial record from a case prosecuted before taking the bench?

Plain-English summary

Before appointment to the bench, the judge prosecuted a criminal case that ended in a guilty verdict. The Vermont Supreme Court later remanded for reconstruction of inaudible bench conferences under V.R.A.P. 10(f). Defense counsel asked the now-sitting judge to help reconstruct what had been said.

The Committee said a judge may provide factual information based on personal knowledge. Rule 3.3's bar on character testimony did not bar factual testimony, but Rules 1.2 and 1.3 required care not to undermine confidence in judicial impartiality or use judicial prestige to advance anyone's interests.

The Committee regarded a written statement, affidavit, testimony, or discussion toward a proposed transcript as likely permissible methods. The judge's participation had to remain confined to factual, material recollection of the conference, without interpretation, legal advice, assistance, advocacy, or opinion to a party or the trial court.

In practice

The opinion permits factual reconstruction of what was said in this former prosecution. It separates a witness's recollection from legal or expert conclusions about the case.

Common questions

Q: May the judge discuss the inaudible conference with defense counsel?

A: The Committee said that discussion toward a proposed transcript was likely permissible if confined to factual, material recollection.

Q: May the judge offer views on legal issues or trial counsel's performance?

A: No. The opinion limits assistance to facts and bars legal advice, advocacy, and opinions in reconstructing the record.

Q: Does Rule 3.3 prohibit every form of judge testimony?

A: No. The Committee distinguished factual testimony from prohibited character testimony and expert opinion about a proceeding.

Background and rules framework

The opinion applies the Vermont Code of Judicial Conduct 2019. Rules 1.2 and 1.3 address public confidence and misuse of judicial prestige; Rule 3.3 limits character testimony; Rule 3.10 concerns practice of law. The requested reconstruction arose under V.R.A.P. 10(f), which the opinion quotes for correcting or modifying an incomplete record.

Citations and references

Vermont Code of Judicial Conduct:

• Rules 1.2, 1.3, 3.3, and 3.10.

Court rules:

• V.R.A.P. 10(f), correction or modification of the record.

Cases cited:

• In re Wilkinson, 165 Vt. 183 (1996), judge's expert testimony about a proceeding.

Other opinions cited:

• Vermont Judicial Ethics Committee Opinion 2827-3 (1999), factual information versus opinion testimony.
• Nevada Judicial Ethics Opinion JE98-003, verbatim transcription of a former prosecutor's notes.
• Massachusetts Committee on Judicial Ethics Opinion 2001-2, factual affidavit; New York Judicial Advisory Opinion 21-96, family-tree affidavit.

See also

• VT Judicial Ethics Opinion 31: Prior Prosecutions
• VT Judicial Ethics Opinion 32: Probate Judge and Prosecutor

Source

• Landing page: Vermont Judicial Ethics Committee
• Original PDF: Opinion 28
• Archived official PDF: reviewable 2025 capture

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Docusign Envelope ID: DEAD8D96-7F85-42A0-A6E0-841227112A19

STATE OF VERMONT

JUDICIAL ETHICS COMMITTEE

Opinion No.: 28
Date: May 28, 2024
To: [name redacted in posted version pursuant to A.O. 35, ¶ 6]

The Committee has considered the matter you presented to it. The following is the

opinion of the Committee and a response to your inquiry pursuant to Administrative Order No. 35.

Questions Presented

Prior to appointment to the bench, the inquiring judge served as a prosecutor in a criminal matter that resulted in a jury verdict of guilty. The case was appealed to the Vermont Supreme Court. During the appeal, numerous portions of the trial record were discovered to be inaudible. The Supreme Court recently remanded the matter to the trial court to reconstruct the record pursuant to V.R.A.P. 10(f) because of the inaudible portions. Defendant’s trial counsel has contacted the judge and inquired if the judge would be available to coordinate with counsel to reconstruct the bench conferences. The judge has requested an opinion on whether: (1) the judge may assist defendant’s counsel in reconstructing the record as requested; and (2) if the judge may assist, are there any restrictions or limitations on their involvement?

Short Answer

Yes, the judge may assist in reconstruction of the record. That assistance must be limited to factual matters and must avoid any advocacy or opinions.

Relevant Canons of Judicial Conduct

The relevant provisions of the Vermont Code of Judicial Conduct 2019 (“the Code” or “VCJC”) include the following rules and guidance:

• Canon 1, Rule 1.2: A judge shall act at all times in a manner that promotes public
  confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

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• Canon 1, Rule 1.3: A judge shall not abuse the prestige of judicial office to advance
  the personal or economic interests of the judge or others or allow others to do so.

• Canon 3, Rule 3.3: A judge shall not testify as a character witness in a judicial,
  administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned.

• Canon 3, Rule 3.10: A judge shall not practice law. A judge may be self-
  represented and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.

Analysis

Prior to appointment to the bench, the judge served as a prosecutor in a criminal matter that was appealed to the Vermont Supreme Court after a guilty verdict. Following the judge’s appointment, the Supreme Court remanded the case pursuant to V.R.A.P. 10(f), which provides for correction or modification of the record “if anything material to either party is omitted by error or accident from, or misstated in, the record.” At issue in this question are bench conferences, so the judge’s participation is necessary to provide the trial court, and ultimately the Supreme Court, with an accurate reconstruction of the record of these conferences.

Generally, a judge is not prohibited, under Rule 3.3, from testifying about factual matters about which the judge has personal knowledge, only from testifying as a character witness. Rule 3.3. Even when providing testimony that does not relate to character, however, the judge must take care not to “abuse the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so,” Rule 1.3, or to undermine “confidence in the independence, integrity, and impartiality of the judiciary,” Rule 1.2.

A judge may not provide testimony as an expert about a proceeding over which the judge presided. In re Wilkinson, 165 Vt. 183, 188 (1996). In that case, the Vermont Supreme Court concluded that a trial judge who had presided over a criminal defendant’s trial could not testify in a post-conviction relief proceeding about the performance of trial counsel or the effect of that performance on the outcome of the trial. Id. at 184-86. Similarly, this Committee has issued an opinion on the question of a sitting judge’s testifying as an expert about standards of judicial conduct before the Judicial Conduct Board, and that opinion provides some further guidance. Judicial Ethics Committee Opinion No. 2827-3, 1999 WL 35129930 (VT Jud. Eth. Comm. 1999). The Committee considered that “[o]n the one hand, there is the need to avoid any appearance that the judge is using his position to advance the interests of a party. But on the other is the realization that a judge may sometimes be uniquely situated to provide information that a decision maker needs.” Id. at *2. The Committee also noted that a judge in Utah had been

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reprimanded because after responding to a request for factual information about the role and function of a guardian ad litem in juvenile court, the judge went on to comment on the ultimate legal issues before the court. Id. at *4, Providing factual information is

permissible, drawing conclusions or offering opinions raises the concerns of Rules 1.2 and 1.3.

A Nevada judicial ethics committee advised a judge who formerly served as prosecutor to refrain from discussing his illegible notes regarding a case with the current prosecutor but permitted the judge to provide “a written verbatim transcription of otherwise illegible notes.” Propriety of a District Court Judge Assisting In Trial Preparation of a Case Originally Prosecuted By the Judge Prior To Taking the Bench, Op. JE98-003, 1998 WL 35417555, at *2 (NV Std. Comm. Jud. Eth 1998). This decision seems consistent with the prevailing view that a judge may assist in purely factual matters—what the notes say verbatim—but not in interpreting or explaining the facts, which may implicate the concerns of Rules 1.2 and 1.3.

Another ethics committee opined that a judge signing an affidavit regarding facts within the judge’s knowledge to be used in a former client’s request for a new trial was permissible; this committee cautioned that the affidavit must contain “factual, material information about which a judge has percipient knowledge,” but concluded that signing the affidavit did not improperly aid private interests or constitute practicing law. Signing Affidavit Supporting New Trial Motion, CJE Opinion No. 2001-2, 2001 WL 36383667, at
*1 (MA Sup. Jud. Ct. Comm. Jud. Eth.). Most recently, the New York Advisory Committee on Judicial Ethics stated that a judge may provide a family-tree affidavit based on the judge’s years-long professional knowledge of a now-deceased individual. NY Jud. Adv. Op. 21-96, 2021 WL 3812264 (N.Y. Adv. Comm. Jud. Eth. 2021).

It is not clear from the question presented whether the judge is being asked to provide a written statement, affidavit, or testimony of the judge’s recollection of what the participants said in a bench conference, or to discuss the judge’s recollections of the bench conference with counsel for the defendant and jointly submit a proposed transcript to the trial court. Any of those methodologies is likely permissible, but the judge’s involvement should be limited to factual, material matters, and not stray to opinion or advocacy for any position. Additionally, the judge should keep in mind the concerns of Rules 1.2 and 1.3.

. Conclusion

The judge who served as a prosecutor prior to appointment to the bench may assist defense counsel in the reconstruction of an inaudible trial record following remand from the Vermont Supreme Court. The judge’s participation in reconstructing the record should remain strictly factual, recounting the judge’s recollection of what was said, and should refrain from providing legal advice, assistance, advocacy, or opinion to any party or to the trial court.

Eileen M. Blackwood, Esq., Chair

Honorable Thomas A. Zonay

Honorable James R. Dean Mahoney

Honorable Brian Valentine

Ian Carleton, Esq.