Opinion 07-29

April 19, 2007

Digest:         A judge may not provide guidance to the local police department regarding the sufficiency of their accusatory instruments and other forms they routinely draft and present to the court.

Rules:          22 NYCRR 100.2(A); 100.4(B); Opinions 06-15; 98-73 (Vol. XVII); 96-44 (Vol. XIV); 95-121 (Vol. XIII).

Opinion:

         The command staff of the local municipal police department has asked a judge for guidance regarding the drafting of accusatory instruments and the sufficiency of other forms the police department utilizes.

         The Rules Governing Judicial Conduct permit a judge to “speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part.” 22 NYCRR 100.4(B). In prior opinions, this Committee has, subject to certain limitations, permitted a judge to teach a Vehicle and Traffic Law class to aspiring police officers at a local community college, permitted a judge to participate in a panel discussion sponsored by a sheriff’s department explaining the procedures and operations of the court as part of departmental training, and to teach a New York State Fire Police training course. Opinions 06-15; 98-73 (Vol. XVII); 96-44 (Vol. XIV).

         The facts in the instant inquiry, however, are more analogous to the circumstances described in Opinion 95-121 (Vol. XIII), in which this Committee determined that a judge should not teach police officers who act as prosecutors in traffic cases how to prosecute their cases successfully. The requested guidance on how to meet the standards of sufficiency when drafting accusatory instruments, whether provided to the police department in general, or to the command staff in particular, would have the effect of advising the prosecution about how to obtain convictions, an activity that undoubtedly would compromise a judge’s appearance of neutrality. Therefore, it is impermissible. 22 NYCRR 100.2(A); Opinion 95-121 (Vol. XIII).

         As set forth in the Committee’s earlier opinions, it is permissible for a judge to present or participate in educational programs for law enforcement personnel that do not compromise the judge’s apparent or actual impartiality, and nothing herein is intended to overrule such earlier opinions.