Opinion 09-173

April 28, 2011

Revised

IMPORTANT: In May 2016, the Committee modified this opinion to reflect that a justice court should not routinely notify witnesses for the prosecution, even if the court is willing to do the same for defendants and defense attorneys on request. Please see Opinion 15-197(B) for more information. (Language that is no longer in effect is shown with strike-through text in the present opinion.)

If the complainant police officer or trooper is also serving as the prosecutor, please see Opinion 10-111.

Digest:         A town justice may not assist the prosecution by notifying each complainant police officer of the scheduled trial date for a traffic offense unless he/she offers to do the same for defendants and defense attorneys.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); In re Winship, 397 US 358 (1970); People v Antommarchi, 80 NY2d 247 (1992).

Opinion:

         A town justice has been asked to notify each complainant police officer (via e-mail) as well as the prosecuting assistant district attorney and the defendant of the trial date for a Vehicle and Traffic Law offense. The judge advises that the assistant district attorney prosecutes all vehicle and traffic offenses (including traffic infractions) in his/her court.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid impropriety and its appearance (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

        In a criminal case, the prosecution bears the burden of proving a defendant’s guilt beyond a reasonable doubt (see In re Winship, 397 US 358, 361 [1970]; People v Antommarchi, 80 NY2d 247, 252 [1992]). Therefore, if the prosecutor in a traffic trial requires the complainant officer’s testimony, it is that prosecutor’s responsibility to secure the officer’s attendance at the appropriate time and place. Should the judge do so on the prosecution’s behalf, he/she would act in derogation of his/her responsibility to uphold the integrity, impartiality and independence of the judiciary (see 22 NYCRR 100.1) and impair public confidence in those essential qualities (see 22 NYCRR 100.2[A]). Therefore, it would be improper for the inquiring judge to notify all complainant police officers who are potential prosecution witnesses of the dates when they must appear for trial.

         Nevertheless, the judge may accede to the prosecutor’s request if the judge offers to do the same for the defense, upon request, and takes effective steps to notify defendants and defense attorneys that they may make such a request. Therefore, the judge must ensure that notice advising defendants and defense attorneys that the court will send trial notices to their witnesses is distributed to reach the widest audience possible. For example, the court can arrange for notice to be posted on the court’s website (if any) and/or the town's website, as well as at the courthouse, the town and/or village halls and the local public library. In addition, the judge may periodically publish a notice in the local newspaper, and he/she should notify the local bar association.