Opinion 14-19

January 30, 2014

Digest:         A judge may not collect DNA samples from convicted defendants.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 101.1; Opinions 13-66; 09-160.

Opinion:

         A judge who is “trained in the proper collection procedure” for collecting DNA samples pursuant to applicable law (see generally http://www.criminaljustice.ny.gov/forensic)¹ asks whether he/she may collect DNA samples from individuals who have been found guilty and sentenced in the judge’s court. The judge notes that the local law enforcement agency has only “one person who is assigned to collect the sample,” and this employee “is not always available.” The judge suggests that it would be more convenient for convicted defendants who are not local residents and are not sentenced to incarceration or probation, if the judge could “collect the DNA sample at the court facility after sentencing.”

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

         The Committee has previously advised that a judge must not assist prosecutors and/or law enforcement in fulfilling their prosecutorial and/or law enforcement functions, as this could compromise the independence of the judiciary, impair the public’s confidence in the integrity and impartiality of the judiciary, and create an appearance of impropriety (see Opinion 09-160 [discussing prior opinions]). Of particular concern, such activities may create an appearance that a judge has “a special relationship with law enforcement” (see Opinion 13-66). Here, too, the Committee believes that the judge should not undertake to collect DNA samples from convicted defendants, as this appears to be a function that would otherwise be performed by an employee of a local law enforcement agency.

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     ¹ Deoxyribonucleic acid, better known as DNA, is a bodily substance that carries genetic information (see http://www.merriam-webster.com/dictionary/dna). The Committee cannot comment on any legal questions that may be associated with this inquiry (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).