RULE 605. COMPETENCY OF JUDGE AS 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.
EXPLANATORY NOTE
This rule provides that a judge is wholly incompetent to testify in a trial over which he is presiding. This changes the North Dakota practice, which allowed the judge to testify and gave the judge the discretion to order the trial to be held before another judge or jury. Section 31-01-10, NDCC. 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).
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 12; October 1, 1975, page 4. Rule 605, Federal Rules of Evidence; Rule 605, SBAND proposal.
STATUTES AFFECTED:
SUPERSEDED: 31-01-10, NDCC.