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26. Is the judge's testimony regarding the defendant's statement admissible?
A defendant was charged with murder. While walking down the hallway during a recess in the defendant's trial, the judge overheard the defendant say to his attorney, «So what if I did it? There's not enough proof to convict.» After the judge reported the incident to counsel, the prosecutor called the judge as a witness in the trial.
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A is incorrect. The defendant's statement would be otherwise admissible as such under Rule 801(d)(2)(A) of the FRE. However, under Rule 605, the statement may not be proven by the testimony of the presiding judge.
B is incorrect. Although it is true that the defendant and his attorney did not make reasonable efforts to preserve confidentiality, this means only that the communication was not privileged. It does not mean that the statement is necessarily admissible. Under Rule 605, the statement cannot be proven through the testimony of the presiding judge. The defendant's statement probably would be admissible if someone other than the presiding judge had overheard it.
C is incorrect. The statement would not be privileged because the defendant and his attorney did not make reasonable efforts to preserve confidentiality. The statement was made in a public place in a voice loud enough to be overheard.