Testimony by a Judge or Juror

Although the early history of the jurata shows it to have been chosen from among those who were familiar with the controversy and parties before the court, it has long been recognized that the better system attempts to obtain jurors and judges who have no prior knowledge of the dispute to be tried. In furtherance of this policy the voir dire exists to eliminate unwanted jurymen and similar devices have been established to provide for the disqualification of judges. In spite of these protections, the situation still occasionally arises where it is discovered after a trial has begun that the judge or a juryman is possessed of facts to which he should testify. When this occurs there is an immediate conflict between two tenets of the judicial system. It is a basic proposition that all relevant evidence should be presented to the trier of facts, while on the other hand the disinterestedness of the tribunal is essential to fairness. Unless this conflict is avoided by the granting of a mistrial and a recommencement of the action before a different judge or jury, there must be a compromise either with the principle of impartiality or a full disclosure. When the Model Code of Evidence and the more recent Uniform Rules of Evidence were formulated, this problem was considered and space given in the final drafts to its solution. It will be the purpose of this article to investigate these solutions, especially those of the Uniform Rules which resulted from further consideration of evidential problems, and to compare them with the present posture of the law