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Weird Witnesses, Part 1

Article by E. Warren Moise

We’re all familiar with calling our client, eyewitnesses, and experts to the stand. But every now and then, there are situations where a non-traditional witness has important information. Never having seen it done, we wonder whether we can call this person to trial. I call these weird witnesses.

What may be a witness?

The common law often excluded weird witnesses as incompetent. Now, virtually everyone is presumed “competent” to be a witness under Fed. & S.C. Rs. Evid. 601. There are a few exceptions.

The presiding judge cannot be a witness in the same case over which he or she presides. Rule 605. A juror is incompetent to testify, although in rare cases the juror might be allowed to testify about extraneous prejudicial information or outside influences on the jury itself. Rule 606. Then there are statutes such as the Dead Man’s Statute and the parol evidence rule (actually both a statutory rule under the UCC and also a common-law rule) which make witnesses incompetent.

Like I said, there aren’t many exceptions to competency. The more difficult question is whether certain weird witnesses, although technically competent, may or should be called.

Post-trial testimony by judges

Okay, judges aren’’t weird. However, they aren’t your everyday witness. Rarely are judges absolutely barred from testifying in trials where they are not the presiding judicial officer. When a judge’s expected testimony is about something that arose in a prior trial or case, no one wants to call him or her unless absolutely necessary. I suspect that the issue arises more often with the state judiciary than in federal courts, and in my experience, the judge typically sought to be a witness is a state magistrate. This is true for two reasons: (a) first, although record-keeping is much improved in modern times, sometimes the magistrate’s record is incomplete; (b) second, magistrates sign arrest and search warrants which are occasionally the subject of attack in general sessions courts in motions to suppress.

So what’s the rule? Judges aren’t prohibited by Canon 2 of either the Code of Conduct for United States Judges or the South Carolina Code of Judicial Conduct from acting as involuntary (i.e., under subpoena) character witnesses; however, Canon 2 requires the judge to discourage someone from calling her, except when the demands of justice require it. Think about it – imagine how uncomfortable you as an adverse attorney would be if you had to impeach a judge’s credibility?

Judges also are competent to testify in later trials about a prior case over which they were involved as the judicial officer. However, the modern trend is not to let them, “unless the testimony: (1) is critical, and (2) can be obtained by no other means.” In re Whetstone, 354 S.C. 213, 580 S.E.2d 447 (2003). See also United States v. Dowdy, 440 F. Supp. 894 (W.D. Va. 1977) (examination of judges as to basis for their opinions disallowed “absent extreme and extraordinary circumstances”). “To show extraordinary circumstances, a presumption as to the regularity of the acts of public officials must first be overcome.” Id. 440 F. Supp. at 896.

Canon 2 also warns against judges sua sponte communicating information to a sentencing judge or a probation or corrections officer. However, a judge may provide information to them if formally requested.

Executive officers

Yes, even executive officers can be made to testify. President Monroe answered written interrogatories, President Nixon had to respond to subpoenas, and President Ford was deposed in a criminal prosecution. Mark Sanford has been sued in a declaratory judgment action in which it was claimed that he was ineligible to serve as governor.

The apogee of a federal executive officer’s involvement with the judicial process is Bill Clinton. He testified in two video depositions for use in criminal proceedings. That was just his start. Paula Jones v. William Jefferson Clinton, 520 U.S. 681 (1997) shows that even the highest executive officer in the land may be sued for wrongdoing while in office. Similarly, in Paula Jones v. William Jefferson Clinton, 36 F. Supp. 2d 1118 (E.D. Ark. 1999), President Clinton was tried and found in contempt. Judge Wright found that his conduct (lying in depositions, interrogatories, an affidavit, and through his attorney – stuff like that) involved dishonesty, fraud, deceit or misrepresentation, or was prejudicial to the administration of justice. Oh yeah, then there was the impeachment before the House of Representatives.

Other officials in the executive branch may be deposed assuming they have knowledge of important facts. Atlanta Journal and Constitution v. Atlanta Dept. of Aviation, 175 F.R.D. 347 (N.D. Ga. 1997) (mayor of Atlanta). Nonetheless, the higher up the food chain, the less inclined a judge will be to allow discovery. For example, it’s been held that an oral deposition of a cabinet-level official usually won’t be allowed. Peoples v. Dept. of Agriculture, 427 F.2d 561 (C.A.D.C. 1970). Moreover, as with judges, a member of the executive branch should not be deposed or examined about his official decision-making process when the decision was made in a quasi-judicial manner. United States v. Morgan, 313 U.S. 409 (1940) (Secretary of Agriculture).

Legislators

Though they are excused from court on certain days during the legislative session, legislators generally are competent and not privileged from testifying at trial. Occasionally one hears of a congressman or senator being called as a character witness, such as when Senator Daniel Inouye recently testified in Alaska Senator Ted Stevens’ criminal trial. Once I had an opponent name a legislator as a character witness just days before trial. After thinking about it, I agreed to waive the late notice if my adversary promised to call the legislator.

More interesting is whether a legislator may testify at trial about the legislative intent behind a statute he wrote or with which he was involved. The federal courts do take notice of legislators’ comments on the house floor during the legislative process.

It’s much harder to determine what goes on in the South Carolina General Assembly, which has steadfastly rejected real accountability. The legislators usually do voice votes so usually no one knows for certain how they vote. Thus, it’s with some logic that since the days of Justice John Rutledge, South Carolina courts refuse to allow members of the General Assembly to testify about the legislative intent of a law, even when the statute’s wording is unclear. See Executors of Rippon v. Executors of Townsend, 1 S.C.L. (1 Bay) 445 (1795).

Bailiffs, sheriffs, and clerks of court

Cases go both ways on the propriety of calling either a bailiff or a deputy assigned as courtroom security to testify during trial. Obviously, because the bailiff is a law-enforcement officer of sorts employed by the sheriff, there is a danger of prejudicing the defendant. Some courts find a bailiff working at a trial per-se incompetent to testify. Other courts allow a bailiff, or sheriff acting as bailiff, to testify depending upon the situation. The issue often turns upon how closely the bailiff is associated with jurors at trial. For example, a bailiff who merely called out the names of jurors while assisting the clerk during voir dire is less likely to influence them than the specific bailiff assigned to escort and guard the jury throughout trial. See generally 98 C.J.S. Witnesses § 197 (Supp. 2008).

More common (and less problematic) are scenarios where a clerk of court is called to testify about the authenticity of court records in her office. This practice is typically allowed. It’s rare to find a case where a party was denied the right to call a clerk as a witness (or objects to a clerk being called).

The ultimate in weirdness

In closing, here’s the oddest of all South Carolina litigation weirdness. In 1935, Gov. Olin Johnson became awfully tired of top Highway Commissioner Ben Sawyer and his gang of pesky confederates interfering with Johnson’s politics. They weren’t carrying out his policies. (Sound familiar?) What took place sounds like a banana republic.

One clear October day shortly before Halloween, the Governor issued a proclamation. In it, he declared the state highway department in a state of “insurrection” and “rebellion.” Gov. Johnson called out the state militia (newly named the “Insurrectionary Troops”) under Major Frank Barnwell. Barnwell was ordered to seize all highways, ferries, and bridges.

Major Barnwell simultaneously invaded the State Office Building where the highway commission’s offices were located. Machine guns were planted at building’s entrances. Sentinels were posted around the building. When the members of the highway commission tried to enter, they were repelled. New, loyalist highway commissioners were appointed who fired the 2,000 employees of the commission, including Ben Sawyer. The militia also seized control of several banks having highway department money. Habeus corpus was suspended.

The supreme court heard the matter in its original jurisdiction. In a 13-page unanimous opinion (per curium, naturally), the court told the Governor that there was no insurrection, to get over it, and reestablished the status quo. Thanks goodness for the judiciary. For the ultimate in weird, every lawyer should read Hearon v. Calus, 178 S.C. 381 (1935).

Next month: More weird witnesses!

Reprinted with permission from the South Carolina Bar. The article originally appeared in the May 2009 issue of South Carolina Lawyer magazine.

About the Author

Warren Moise is a member of Grimball and Cabaniss, LLC, in Charleston, SC. Warren brings to his practice 20 years of experience, specializing in insurance defense litigation cases, representing automobile dealers and insurance companies in coverage disputes.