The Colorado Supreme Court’s advisory ethics panel has indicated that sitting judges may comment as character witnesses in clemency proceedings, but under a specific circumstance: when the judge is asked to do so as the person who prosecuted the defendant originally.

The Code of Judicial Conduct bars judges from testifying as character witnesses, except “when duly summoned.” While that phrase is undefined, the Colorado Judicial Ethics Advisory Board determined that being asked to participate in the clemency process – meaning a pardon or sentence reduction by the governor – counts as a summons.

“If a judge voluntarily provides character testimony, the assumption is that the testimony will be favorable and will inject the prestige of the judge’s office into the proceeding,” the board wrote in an opinion effective Sept. 16. But when a judge is called to testify in their capacity as a former prosecutor, “the concern of impropriety or abuse of judicial office does not exist as it would if the judge were voluntarily commenting on the applicant’s character.”

The advisory opinion is in line with several other states’ policies that prevent judges from weighing in on behalf of a person’s clemency application unless there is a request to do so. In fall 2018, the National Center for State Courts’ Center for Judicial Ethics noted certain exceptions to the rule against character testimony. For example, some states allow judges who were the victims of a crime or whose family members were victims to offer testimony as individuals, not as judges.

In Massachusetts, an advisory opinion tacitly authorized judges to testify on behalf of a client they once defended, but only under a subpoena.

The guidance in Colorado followed a question from an unnamed judge who, earlier in their career, was the lead prosecutor on a case in which the defendant received a sentence of life in prison. The defendant recently applied for clemency after serving multiple decades in prison. The Office of Executive Clemency asked the judge to comment on the clemency application prior to the governor making a decision.

State law requires the governor to make “reasonable efforts” to seek the input of the original trial judge and prosecutor, and to consider the defendant’s character and their conduct during confinement. The Colorado ethics opinion reached the same conclusion as other states: testifying when summoned as a judge is different than offering comments voluntarily.

“To eliminate any vestige of impropriety, the requesting judge should respond solely in his or her capacity as the former prosecutor who tried the applicant and should refrain from identifying as a judge or using judicial letterhead,” the advisory opinion stated.

Colorado’s ethics advisory panel construed the rules of judicial conduct more liberally than some other states. In Nevada, for example, guidance from 2011 directed judges to limit comments to “factual information, not character testimony.”

This is the ethics panel’s first advisory opinion for 2021. The body’s membership includes judges, lawyers and non-attorneys. The Colorado Judicial Department declined to release the name of the judge who requested the guidance, as the judge had not agreed to be publicly identified.