Opinion 08-21

January 31, 2008

Digest:         Members of a county magistrates association may attend an educational program, sponsored by the county probation department, about implementing post-conviction polygraph testing for convicted sex offenders, but only if the program is not intended solely to promote law enforcement goals and if open to the defense bar as well as law enforcement officials.

Rules:          22 NYCRR 100.2(A), (C); 100.3(B)(8); Opinions 06-73; 98-87 (Vol. XVII); 94-31 (Vol. XII); 87-28(a) (Vol. I).

Opinion:

         Members of a county magistrates’ association are invited to an educational program sponsored by the county probation department about implementing post-conviction polygraph testing for convicted sex offenders. A justice, on behalf of the association’s members, asks whether they may attend the program.

         Pursuant to the Rules Governing Judicial Conduct, a judge must always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and must not convey nor permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         The Committee previously concluded that it is improper for judges to attend training programs designed to “maximize enforcement” or enhance conviction rates (see Opinion 94-31[Vol. XII]), or that are sponsored by law enforcement agencies solely to benefit law enforcement officials (see Opinion 87-28a [Vol. I]). Attending such programs would adversely affect the judiciary’s appearance of impartiality and propriety.(see id.).

         The justice here gives no indication about the probation department’s target audience. The program topic, however, does appear to be one of interest to the larger criminal justice community. If the public defender and his/her staff and other defense bar members were also invited to attend, the program would less likely appear to be intended solely to promote law enforcement goals. In that case it would be permissible for the justices to attend (see Opinion 06-73). Nevertheless, justices who attend must refrain from commenting on pending or impending cases (see 22 NYCRR 100.3[B][8]) and must not indicate any predisposition to decide any type of cases in a particular way (see Opinions 06-73; 98-87 [Vol. XVII]).