RULE 605. JUDGE'S COMPETENCY
AS A WITNESS
The judge presiding at the trial may not testify in that trial as a witness.
be made in order to preserve the point. A party need not object to preserve the
Rule 605 was amended, effective March 1, 2014.
This rule provides that a judge is wholly incompetent to testify in a trial over which
judge is presiding. This changes the North Dakota practice, which allowed the
testify and gave the judge the discretion to order the trial to be held before another judge or
jury. N.D.C.C. § 31-01-10. This concept of "discretionary" incompetency was rejected
as involving practical problems in the conduct of a trial should the judge decide to continue
hearing the case, e.g., can the judge rule on his own testimony? It was also felt that, in the
words of McCormick, a judge's "role as a witness is manifestly inconsistent with his
customary role of impartiality in the adversary system of trial." McCormick on Evidence
§ 68, p. 147 (2d ed. 1972).
Rule 605 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
page 23; January 29,
1976, page 12; October 1, 1975, page 4. Rule Fed.R.Ev. 605 ,
Federal Rules of Evidence;
Rule 605, SBAND proposal.
Superseded: N.D.C.C. § 31-01-10.