Opinion 10-70

April 22, 2010

Digest:         A judge who recently presided over a jury trial during which he/she individually questioned prospective jurors during the voir dire and, after declaring a mistrial, thanked each juror individually for his/her service is not disqualified from presiding over an unrelated case in which a party is one of the jurors who served in the earlier case and need not disclose the party’s prior jury service.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(10); 100.3(E)(1); 100.3(E)(1)(a)(i), (b)(i), d(i); 202.33(e); Opinion 94-84 (Vol. XII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

The inquiring judge recently presided over a jury trial during which he/she individually questioned prospective jurors during the voir dire and, after declaring a mistrial, thanked each juror individually for his/her service. One of the jurors is now a named defendant in an unrelated case before the judge. The judge has disclosed to the parties’ attorneys in the new matter that the defendant recently served as a juror before the judge and has asked them to advise whether they have any objection to the judge continuing to preside. The judge asks whether he/she must exercise recusal if a party requests it.

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]). Therefore, a judge must not commend or criticize jurors for a verdict, except in a court order or opinion, but may express appreciation to jurors for their service to the judicial system and the community (see 22 NYCRR 100.3[B][10]). A judge must disqualify him/herself under certain circumstances that are not relevant to the present inquiry (see 22 NYCRR 100.3[E][1][a][i], [b][i], [d][i]) and otherwise in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).  

The mere fact that a judge engaged in official communications with a juror during the course of performing his/her judicial duties, without more, does not require the judge to exercise recusal when the juror subsequently appears in the judge’s court as a party to an unrelated proceeding. Judges normally participate in the voir dire during jury selection (see 22 NYCRR 202.33[e]) and often express appreciation to jurors for their services (see 22 NYCRR 100.3[B][10]). Consequently, the relationship between a trial judge and a juror is not ordinarily one that could reasonably cause the judge’s impartiality to be questioned (see 22 NYCRR 100.3[E][1]).

Although it was not necessary to do so, the inquiring judge disclosed his/her previous contact with the party now before him/her and has invited the attorneys to advise him/her of any objections to his/her continued participation in the case. Should any party make such an objection, the judge has the discretion to grant or deny it (see People v Moreno, 70 NY2d 403 [1987]), but need not grant it in the absence of any additional factor that warrants disqualification (see Opinion 94-84 [Vol. XII]).