Opinion 09-62

June 3, 2009

Digest:         A judge may provide forensic science and crime scene processing training to a law enforcement agency that regularly appears before the judge, as long as he/she does not 1) provide partisan advice on litigation strategy or on how better to obtain convictions, 2)does not comment on pending or impending matters, and 3) does not manifest a predisposition to decide a particular type or class of case a certain way.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(9); 100.4(A)(1)-(3); 100.4(B); Opinions 08-49; 07-29; 06-77; 06-15; Joint Opinion 03-84/03-89; 98-73 (Vol. XVII); 96-44 (Vol. XIV); 95-121 (Vol. XIII).

Opinion:

         A part-time judge with experience in forensic science and crime scene processing asks whether he/she may provide training on these subjects to officers who work for a law enforcement agency that regularly appears in the judge’s court.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities, including teaching and lecturing, as long as doing so does not (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and is not incompatible with judicial office (see 22 NYCRR 100.4[A] [1]-[3]; 100.4[B]).

         The fact that a judge’s intended audience consists of law enforcement personnel does not, in and of itself, render a speaking engagement ethically impermissible (see Opinions 06-15; 98-73 [Vol. XVII]; 96-44 [Vol. XIV]). Indeed, “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” (Opinion 07-29; see also Opinions 06-15; 98-73 [Vol. XVII]); 96-44 [Vol. XIV]).

          For example, the Committee previously has advised that a judge may not teach cross-examination techniques to defense attorneys (see Opinion 08-49), provide guidance to local police about how to draft legally sufficient accusatory instruments (see Opinion 07-29), or teach police officers how to prosecute traffic cases successfully (see Opinion 95-121 [Vol. XIII]).

         However, as long as a judge “exercise[s] caution” to avoid the perception that he/she is providing advice on litigation strategy or tactics (Opinion 06-77), a judge may give a seminar on appellate practice to staff attorneys of a public authority (id.); teach fire police officers about the duties, responsibilities, and laws pertaining to their position (see Opinion 06-15); participate in legal education programs sponsored by advocacy groups (see Joint Opinion 03-84/03-89); teach a Vehicle and Traffic Law class to aspiring police officers (see Opinion 98-73 [Vol. XVII]); and explain the procedures and operations of the court at a sheriff’s department training program (see Opinion 96-44 [Vol. XIV]). The judge also must avoid discussing any pending or impending cases (see 22 NYCRR 100.3[B][8]) and manifesting a predisposition to decide a particular type or class of case a certain way (see 22 NYCRR 100.2[A]; 100.3[B][9]; Opinion 06-15). As long as the judge’s participation is otherwise permissible, the fact that audience members may appear before the judge does not render the judge’s participation inappropriate (see Opinion 96-44 [Vol. XIV]).

         Therefore, subject to the same restrictions, the Committee advises that the inquiring judge may provide training on forensic science and crime scene processing to officers working in a law enforcement agency that regularly appears before the judge.