united-states criminal-law judge prosecution
Can a judge or prosecutor be compelled to testify in a criminal trial in which they officiated?
<p>Without considering <em>why</em> a party in a criminal trial might want to do so, are there any obstacles to subpoenaing and examining any of the following people as witnesses during the trial?  ETA: Not as eye-witnesses to the alleged crime, but rather as witnesses to the criminal process.</p>
<ol>
<li><p>A judge who has acted in some capacity in the case on trial, <em>but who is not presiding</em>.  For example: (A) the judge who arraigned the defendant.  (B) a judge who recused himself from the case.</p>
</li>
<li><p>A lawyer working in the prosecutor's office that is prosecuting the defendant.</p>
</li>
</ol>
<p>If context is necessary, one reason I can imagine a defense might want to examine these people before the jury is to call into question the motives and methods driving the prosecution of the defendant.</p>

<p>The answer to this question will be almost entirely informed by the <em>why</em> that you've asked us not to consider.</p>
<p>If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_7_lawyer_as_witness/" rel="noreferrer">Rule 3.7</a> or <a href="https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d" rel="noreferrer">Canon 3</a>.</p>
<p>If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under <a href="https://www.law.cornell.edu/rules/frcrmp/rule_12" rel="noreferrer">Crim. R. 12</a>, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence.</p>

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<p>In a similar vein to <a href="https://law.stackexchange.com/a/94268/35069">bdb848</a>'s answer...</p>
<p>Witnesses are called to either offer testimony concerning facts in issue relating to the indictment, or to give evidence on the defendant's good / bad character.</p>
<p>Enquiries in to the &quot;criminal process&quot; are dealt with independently and away from the jury.</p>
<p>For example:</p>
<p>Complaints against a judge are investigated by the Judicial Conduct Investigations Office, by virtue of the <a href="https://www.legislation.gov.uk/uksi/2014/1919/contents/made" rel="noreferrer">Judicial Discipline (Prescribed Procedures) Regulations 2014</a>.</p>
<p>Allegations of prosecutoral failings or abuse of process are usually dealt with in a <em>voir dire</em> following a defence application under <a href="https://www.legislation.gov.uk/ukpga/1984/60/section/78?timeline=false" rel="noreferrer">section 78</a>
Police and Criminal Evidence Act 1984 or via the court's inherent powers.</p>
<p>There is also the possibility of a &quot;Misconduct in Public Office&quot; investigation if the alleged failings and / or abuse of process are severe enough.</p>
<p>So no: they can't be called unless they are a <em>bone fide</em> witness.</p>

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<blockquote>
<p>defense might want to examine these people before the jury is to call into question the motives and methods driving the prosecution of the defendant.</p>
</blockquote>
<p>A prosecutor who is <em>also</em> already a witness for their case can be compelled to testify about the conduct of their prosecution.</p>
<p>In <a href="https://duckfiles.nz/decided/2021.09.29%20%5BNZDC%2019459%5D%20acquittal%20judgment.pdf" rel="nofollow noreferrer"><em>Greendrake v McConnochie</em></a> I was on the witness stand in the role of a witness for the case I was prosecuting self-represented (private prosecution). However, the only questions the defence wanted to ask were pertaining to my roles of an investigator and prosecutor in the case, not a witness as to the elements of the charges in question.</p>
<p>I objected to those questions on the basis that I was only giving evidence in the role of a witness <em>for</em> the prosecution. To no avail: the judge overruled my objections and I had to give the answers.</p>
<p>In theory, I could request an adjournment and appeal the decision to overrule my objection, but I did not as I had nothing to hide anyway. But the precedent now remains.</p>
<p>However, to be compelled to testify like that, a prosecutor (or a judge) must <em>already</em> be on the witness stand — on their own volition. There is no way to compel them to be there in the first place.</p>

<p>In the Scopes trial, <a href="https://en.wikipedia.org/wiki/Scopes_trial#Examination_of_Bryan" rel="nofollow noreferrer">the defence called William Jennings Bryan, who was a counsel for the prosecution, as an expert witness</a>.</p>
<blockquote>
<p>Stewart objected for the prosecution, demanding to know the legal purpose of Darrow's questioning. Bryan, gauging the effect the session was having, snapped that its purpose was &quot;to cast ridicule on everybody who believes in the Bible&quot;. Darrow, with equal vehemence, retorted &quot;We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States.&quot;</p>
</blockquote>
<p>So I'd say yes for a prosecutor.</p>
