# Brown v. State

> Court of Criminal Appeals of Oklahoma · March 2, 1973 · 506 P.2d 1396

URL: https://www.frixlaw.com/law-library/cases/9597024

## Case

- **Full name:** Billy Don BROWN, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** March 2, 1973
- **Citations:** 506 P.2d 1396; 1973 OK CR 109; 1973 Okla. Crim. App. LEXIS 701
- **Precedential status:** Published
- **Opinion:** Dissent by Brett
- **Judges:** Brett, Bussey, Bliss
- **Cited by:** 9 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/9597024

## Opinion text

BRETT, Judge
(dissenting).
I believe this conviction should be reversed and remanded for a new trial, be *1400 cause of the prosecutor’s participation as a witness. In the instant case, I fail to find the “most extra-ordinary circumstances” referred to Robinson v. United States, supra, to justify the prosecutor’s being a witness. His testimony was material to the main issue and must have been most persuasive. As I view the matter, the situations are rare indeed, when.the prosecutor should be permitted to testify; and when that situation develops, the prosecutor should withdraw from further participation in the case.
In Adams v. State, 202 Miss. 68 , 30 So.2d 593 (1947), the prosecutor was disqualified from testifying. In Jenkins v. State ex rel. Sweat, 242 Miss. 646 , 136 So.2d 580 (1962), the prosecutor was not considered qualified to testify. See also: Bennett v. Commonwealth, 234 Ky. 333 , 28 S.W.2d 24 (1930); and Frank v. State, 150 Neb. 745 , 35 N.W.2d 816 (1949). The practice is held to be improper in the ABA Code of Professional Responsibility, and the Oklahoma Bar Association, Canons of Ethics as well as in the Oklahoma Bar Association Advisory Opinions Numbers 9 and 114. 1 In the Oklahoma Bar Association Advisory Opinion No. 9 of October 30, 1931, the syllabus recites:
“It constitutes unprofessional conduct for a county attorney or his assistant to testify as a witness for the state in a criminal case wherein they appear as counsel for the state, except as to merely formal matters.”
Also, in the Oklahoma Bar Association Advisory Opinion No. 114 of September 25, 1936, the second paragraph of the syllabus states:
“No member of the bar having a just conception of his true and proper position will unite the character of counsel and witness in the same case.”
In the body of that opinion the following is found:
“The language of the Supreme Court of Minnesota in Ferraro v. Taylor, 197 Minn. 5 , 265 N.W. 829 is apposite:
‘The practice of attorneys of furnishing from their own lips and their own oath the controlling testimony for their client is one not to be condoned by judicial silence * * *. The good name and deservedly high standing of the * * * bar requires that the practice be stopped. For nothing short of actual corruption can more surely discredit the profession.’ ”
Therefore, I respectfully dissent to the results reached in this decision.
. American Bar Association Special Committee on Evaluation of Ethical Standards, Code of Professional Responsibility, “Ethical Consideration” EC 5-9, p. 59; “Disciplinary Rule,” DR 5-102, [eff. Jan. 1, 1970]. “Canons, Professional Ethics,” 5 O.S.1961, Ch. 1, App. 3, Canon 19, p. 138 [adopted Oct. 6, 1958]. ABA Canons of Professional Ethics adopted by the Oklahoma State Supreme Court on “Rules Creating and Controlling the Oklahoma Bar Association,” 41 O.B.J. 180, 188.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9597024. Public record. Not legal advice.