# United States v. Ted Johnston

> Court of Appeals for the Seventh Circuit · October 1, 1982 · 690 F.2d 638

URL: https://www.frixlaw.com/law-library/cases/9469798

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Ted JOHNSTON, Defendant-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** October 1, 1982
- **Citations:** 690 F.2d 638; 1982 U.S. App. LEXIS 25137
- **Precedential status:** Published
- **Opinion:** Dissent by Cudahy
- **Judges:** Cummings, Pell, Bauer, Wood, Cudahy, Eschbach, Posner, Coffey
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469798

## How later opinions describe it (automated extraction)

- noting “we would expect that a judge would not be swayed by the prominence or prestige of a government prosecutor in assessing the credibility of 23 his testimony,” but that “the maintenance of public confidence in the ultimate fairness of judicial proceedings is no less appli…
- noting that the advocate-witness rule is applied more flexibly when a bench trial is involved
- applying attorney-witness conflicts rule to federal prosecutors

## Opinion text

CUDAHY, Circuit Judge,
dissenting.
I respectfully dissent for the reasons I explained in the original panel opinion, reported at 664 F.2d 152 . Although I think the majority’s solution to the knotty problem presented by this case is well-intentioned, it must lead either to the effective nullification of a long and firmly established ethical rule or to an unwarranted depletion of prosecutorial resources.
The solution proposed by the majority is to allow a government prosecutor to testify against a criminal defendant at a pre-trial suppression hearing. If the prosecutor then seeks to represent the government at trial, this course of action will be permitted only if the government can persuade the trial court that substitution of counsel — the preferred solution in the majority’s view— would unreasonably prejudice the government’s case against the defendant and that the prejudice to the government outweighs the possible prejudice to the defendant of allowing the testifying prosecutor to try the case. If I understand the solution correctly, I think it deficient on several counts.
First, the requirement of showing prejudice to the government would be unnecessarily wasteful of prosecutorial and judicial resources. Presumably, the trial court in deciding whether substitution of counsel would prejudice the government’s case .would have to inquire into such matters as the extent of the testifying prosecutor’s preparation for trial, the nature and scope of the government’s investigation into the alleged criminal acts, the number of prosecutors involved in the case, the availability of substitute counsel and the amount of time remaining before the trial is scheduled *647 to begin. If taken seriously by the trial courts, this showing of prejudice to the government could easily consume a substantial amount of time of these courts as well as of the prosecution. It could also result in further delay of many criminal trials. In addition, we might expect to receive a healthy number of criminal appeals alleging as error the trial court’s determination of prejudice. But wasted resources is not the only drawback of the majority’s solution; the required determination of prejudice would often raise ethical problems of its own. The trial court’s necessary examination of the prosecutor’s trial preparation would often require anticipation of some of the factual and substantive legal issues that might arise during the course of the trial. Pre-trial consideration of these issues would be improper and, to avoid even the appearance of impropriety, the trial judge in such cases might feel obliged to recuse himself or herself from the trial of the case after deciding whether the testifying prosecutor should be compelled to withdraw. Recusal by the trial judge, however, would itself eliminate the advocate-witness problem. Hence, in these cases the majority’s proposal seems to result in fruitless inquiry into prejudice, the only result of which is to taint the trial judge and force his withdrawal from the case. As indicated below, the solution proposed by the original panel achieves the same basic result but dispenses with the burdensome and contentious determination of prejudice to the government and to the defendant.
Second, the majority’s direction to the trial court to balance prejudice to the government against prejudice to the defendant if a testifying prosecutor is allowed to try the case is about as simple as weighing a cupful of air. The prejudice to the defendant, as the majority notes, is the bias, or more likely the appearance of bias, on the part of a trial judge who presides over a criminal trial after determining in a pre-trial hearing that either the prosecutor or the defendant was less than credible. The advocate-witness rule is a broad prophylactic rule designed to prevent even the appearance of impropriety. Because prejudice to a defendant in a particular case is almost impossible to measure, the rule is not susceptible to the ad hoc application mandated by the majority. Thus, the likely consequence of the majority’s holding is that the government, whose interests in the matter are more demonstrable than those of the defendant, will in most cases prevail. The policies supporting the advocate-witness rule, which the majority purports to reaffirm, can be no match for the concrete showing the government will ordinarily be able to make in support of its claim of prejudice.
Third, the majority also invites the trial court to consider the particular context of the prosecutor’s testimony, in this case the circumstances of the defendant’s telephone call to the Assistant United States Attorney. In reaching its conclusion in the case before us, the majority stresses the fact that it was the defendant who initiated the telephone conversation and who first raised the matter which is the subject of the testimony. I do not understand why or how these circumstances should figure in our analysis. If the advocate-witness rule is to be scuttled every time it is the defendant who first testifies on a subject about which the prosecutor would like to take the stand in rebuttal, very little of the rule would remain.
In light of these rather serious deficiencies in the majority’s proposed solution to the advocate-witness problem, I believe that the original panel’s solution was clearly preferable. According to the panel opinion, there are basically two ways to address the problem, neither of which sacrifice the important policies supporting the rule against prosecutors appearing as witnesses in their own cases. First, the prosecutor who wishes to testify against the defendant in a pre-trial hearing may be required to withdraw from any further participation in the hearing or trial. The majority labels this the preferred solution and leaves the matter to the trial judge to decide on the basis of a nebulous balancing test. I would leave the question to the government to determine by the course it pursues, since the *648 government is in the best position to decide whether the value of a prosecutor’s testimony outweighs the value of his or her services at trial. But even then, withdrawal by the prosecutor is not in my view the only, or even the preferred, solution. As the government has argued in this case, weighing the prosecutor’s testimony against his or her participation in the trial may well present a Hobson’s choice. The prosecutor’s participation at trial might be indispensable but to forego testifying at a suppression hearing may well risk dooming the merits ■of the government’s case against the defendant. Because I believe that the necessity for making such a choice would unnecessarily defeat the objectives of criminal law enforcement, I am less willing than the majority to applaud substitution of counsel as the preferred solution. That is why the original panel did not hold that withdrawal by the prosecutor was mandatory or even preferred. See 664 F.2d at 158 n.26.
There is another solution to the advocate-witness problem, suggested for the first time by the government but never presented to the district court. Because the ethical problem arises from the fact that the trial judge is asked (1) to make a credibility determination between a prosecutor and a defendant and (2) later to preside over the defendant’s trial in which the prosecutor participates, the problem can be eliminated completely by separating these functions. As described in the panel opinion, this separation can be achieved by either of two methods: the trial judge can refer the suppression motion to a magistrate to hear the conflicting testimony and recommend a finding of fact, or the trial judge can hear and decide the motion and then transfer the case to another judge for trial. Thus, substitution of judges can remedy the ethical problem in the same manner as substitution of counsel, but with much less impairment of prosecutorial efficiency. Because pretrial motions will typically, as in the instant case, involve issues far afield from those arising at trial, withdrawal by the trial judge after ruling on the pre-trial motion will not often result in the loss of the benefit of the trial judge’s familiarity with, or expertise in, a given case.
For these reasons, I disagree with the majority’s proposed solution to the advocate-witness problem. I also disagree with the particular disposition of the instant case. I am simply unable to conclude that Judge Leighton abused his discretion when he refused to allow the Assistant United States Attorney to testify. The value of the proffered testimony was marginal at best since five of the witnesses at the suppression hearing were present in person during the interviews at which the defendant claims he was granted immunity from prosecution. Moreover, Judge Leighton in ruling on the motion specifically disregarded the defendant’s statement concerning the telephone call. Under these circumstances and in light of the government’s failure to propose alternatives to the exclusion of the testimony, it is impossible for me to say that there was an abuse of discretion. It is almost equally difficult for me to perceive this question of management of a complicated situation by a trial judge required to act without much warning as an appropriate subject for an in banc rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469798. Public record. Not legal advice.