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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE 605 Judge as Witness

Woodlands Criminal Defense Attorney - Brian Foley.

To make sure someone is mentally competent to be tried in the first place you have to determine that they understand the nature of judicial proceedings and the roles of the parties involved. This means that they know their lawyer represents them against the prosecutor who is trying to convict them. They also are typically required to understand that the Judge's job is to make sure that the lawyers follow the rules and that the defendant and the state receive a fair trial. If you don't understand this then you are not mentally competent to be tried for a criminal case.

That being said, they had to include a rule to prevent judges from testifying as a witness in the trial! Rule 605 reads, "The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue."

Here is another one in the "duh!" category. So lets look at how this has come up.

In Young v. State, 629 S.W.2d 247, 249 (Tex. App. -- Fort Worth 1982) a trial judge testified that the defendant was the same person who was previously convicted for purposes of enhancement during punishment. This was prior to the adoption of Rule 605.

Cannon 2 of the Texas Code of Judicial Ethics provides that "A judge shall not testify voluntarily as a character witness." But this is not a rule of evidence and should a judge be subpoena'd to testify against his consent she would be required to testify truthfully.

One of the benefits of this rule is that error is preserved even without an objection. So if the Judge decides they are going to testify you don't have to incur the possible negative consequences of trying to tell the Judge, "No you can't do that."


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