27-605. 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.

Source

Annotations

1. Judge as witness

2. Applicability

3. Objection

4. Miscellaneous

1. Judge as witness

Comments by the judge presiding over a matter are clearly not evidence, because a judge may not assume the role of a witness. In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018).

The trial judge may not assume the role of a witness, and comments made by the trial judge in such a capacity are not evidence. State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000).

A judge presiding at a trial may not testify at that trial to establish the content of the court's record. Everson v. O'Kane, 11 Neb. App. 74, 643 N.W.2d 396 (2002).

This section does not prohibit a judge who presided over a defendant's plea and sentencing from later testifying at an evidentiary hearing on a defendant's motion for postconviction relief where the judge is not the presiding judge at the evidentiary hearing on postconviction relief. State v. Stevenson, 9 Neb. App. 316, 611 N.W.2d 126 (2000).

2. Applicability

The rule prohibiting the presiding judge from testifying as a witness in that trial applies not only to formal testimony but also to whenever the judge assumes the role of a witness. State v. Livingston, 244 Neb. 757, 509 N.W.2d 205 (1993).

This section does not apply to only formal testimony; it applies also whenever the judge assumes the role of a witness. State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (1993).

Statutory prohibition against a presiding judge's testifying at trial as a witness applies not only to formal testimony but applies whenever the judge assumes the role of a witness, and no objection need be made in order to preserve the point. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).

3. Objection

Although the defendant did not object to the judge's comments, the timely objection requirement was inapplicable because the trial judge had assumed the role of a witness. Krusemark v. Thurston Cty. Bd. of Equal., 10 Neb. App. 35, 624 N.W.2d 328 (2001).

4. Miscellaneous

When the Nebraska Evidence Rules apply to an administrative hearing, those persons performing adjudicative functions are presumptively incompetent to testify. However, there are limits to an agency's power to shield its employees from a subpoena. An employee with unique knowledge indispensable to the adjudication may be subject to a subpoena. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).

Parties may not waive the disqualification of the judge presiding at the trial when he is a material witness or has personal knowledge of disputed evidentiary facts concerning the proceeding. Cline v. Franklin Pork, Inc., 210 Neb. 238, 313 N.W.2d 667 (1981).

This section prohibits appellate courts from treating statements of a trial judge as evidence of the condition of the trial court's docket. State v. Soltis, 11 Neb. App. 61, 644 N.W.2d 160 (2002).