Opinion 12-49

March 8, 2012

Digest:         A judge may preside over a mock video arraignment for educational purposes during a county executive’s state of the county speech.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(B); 100.4(A)(1)-(3); Joint Opinion 09-240/09-241/10-06; Opinions 09-58; 09-26; 07-188; 96-140 (Vol. XV); 94-74 (Vol. XII); 89-66 Vol. III).

Opinion:

         A full-time judge asks whether he/she may, at the request of the county executive, participate in a mock video arraignment “designed to demonstrate the safety and other financial benefits of using technology in arraigning consenting defendants.” Other participants in the mock video arraignment would include a prosecutor, defense counsel, law enforcement officers, and corrections personnel, and the role of “defendant” would be played by a supervisor in the county’s personnel department. The inquiring judge believes that video arraignments would improve the legal system and the administration of justice, but notes that the mock video arraignment will take place during the county executive’s “state of the county” address, which will address other initiatives and proposals unrelated to the law, the legal system, or the administration of justice.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities such as teaching (see 22 NYCRR 100.4[B]), provided that they are not incompatible with judicial office and do 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 (see 22 NYCRR 100.4[A][1]-[3]). A judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories but may explain for public information the procedures of the court (see 22 NYCRR 100.3[B][8]).

         The Committee has previously advised that it is permissible for a full-time judge to preside over a mock trial for educational purposes, provided that the judge does not discuss pending or impending cases and the presentation is not used as a means to promote a particular point of view or support a particular side (see Opinions 09-58; 09-26; 96-140 [Vol. XV]; 94-74 [Vol. XII]; 89-66 [Vol. III]).

         Here, the inquiring judge’s participation in the mock video arraignment appears to serve not only as a means of educating the public about procedures of the court with respect to arraignments (see 22 NYCRR 100.3[B][8]) but also as a way for the judge to publicly advocate use of a particular technology and procedure for certain arraignments, in order to improve the legal system and the administration of justice, which is also permissible (see Opinion 07-188 [noting that the Rules Governing Judicial Conduct “specifically encourage judges to become involved in extra-judicial activities that concern the law, the legal system and the administration of justice”]). Moreover, there is balance in both the intended audience (i.e., the general public) as well as in the presenters themselves, who are drawn from the actual spectrum of organizations that participate in real-life arraignments.

         The Committee recognizes that the county executive is an elected public official and that the state of the county address may be designed to further his/her particular non-judicial policy goals or initiatives and also to highlight the county executive’s accomplishments in hopes of furthering his/her political career. It is nonetheless essentially a public event, much like the swearing in of public officials, which the judge may attend without engaging in impermissible political activity (cf. Joint Opinion 09-240/09-241/10-06). In the Committee’s view, neither the judge’s presence nor the judge’s proposed participation in the mock video arraignment, without more, would create any reasonable public perception that the judge is endorsing the county executive or his/her policies.

         The Committee therefore concludes that, under the circumstances presented, it is permissible for the inquiring judge to preside over a mock video arraignment for educational purposes during the county executive’s state of the county speech.