RULE 605. JUDGE'S COMPETENCY
OF JUDGE AS A WITNESS The judge presiding at the trial may not testify in that trial
as a witness. No objection need
be made in order to preserve the point.
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Rule 605 was amended, effective ________________.
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 ______________, 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
: of___________________; 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Superseded: N.D.C.C. § 31-01-10.