Opinion 15-99

June 11, 2015

Digest:         A magistrates association may tour state police headquarters, but should not observe law enforcement training on how to process a DWI arrest at the state police headquarters.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); Opinions 14-20; 12-64; 09-175; 03-45; 94-31; 87-28(a).

Opinion:

         A part-time judge asks whether a magistrates association, of which the judge is a member, may tour a state police headquarters and watch the “training/process of a DWI arrest.” The judge says the district attorney’s office and public defender’s office would also be invited to attend. The judge suggests that “the presence of all offices and personnel involved in the prosecution, defense and court process will all gather the same information without bias,” and that the event would be similar to the required jail tour the judges must take each year.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). He/she may not convey, or permit others to convey an impression they are specially positioned to influence him/her (22 NYCRR 100.2[C]); and must be faithful to law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]).

         The Committee has previously advised that a Family Court judge may visit a domestic violence shelter to supplement the judge’s education and training but must not discuss court-related issues or pending cases when interacting with shelter occupants (see Opinion 09-175). Similarly, the Committee has advised that a judge who directs defendants convicted of certain crimes to attend a victim impact panel may observe the impact panel, albeit in a different county and without being identified as a judge (see Opinion 12-64). The Committee also sees no reason why a magistrates association should not tour a state police facility, as it appears to be primarily an educational opportunity relating to the judges’ judicial duties (cf. 22 NYCRR 100.3[B][1]), particularly where, as here, the prosecution and defense will also be invited.

         The proposed police demonstration of the “training/process of a DWI arrest,” however, raises additional concerns. The Committee has advised that judges may not attend a DWI update training seminar presented by a district attorney’s office exclusively for judges in that county (see Opinion 87-28[a]) and may not attend training sessions sponsored by a law enforcement agency to “maximize enforcement” (Opinion 94-31). Nor may a judge participate in a “ride along” program with the local police department, even when “the program is made available to all public officials and citizens” (Opinion 03-45).

         Under the circumstances presented, the Committee believes observation of law enforcement training on how to process a DWI arrest at the state police headquarters could create an appearance of impropriety, as the public is likely to perceive that law enforcement officials are being given special access to the judges in order to demonstrate the ostensibly proper way to process such an arrest. Despite the presence of the prosecution and the defense, it would be difficult to avoid the public perception that a law enforcement agency was being allowed to educate the judiciary on the “proper way” to conduct such arrests (cf. Opinion 14-20 [a supervising judge should not permit a local medical professional, who is an expert in child abuse and who regularly consults with and testifies as an expert on behalf of the District Attorney and/or the Department of Social Services, to present a judicial training on child abuse to Family Court judges who preside in the supervising judge’s district]). This could undermine the defendants’ confidence in the judges’ ability to be fair and impartial in DWI cases, especially as it is likely that the same officer(s) who gives the demonstration would subsequently appear before the magistrates to testify in various cases (see id.). As suggested in Opinion 87-28(a), to allow the same officers to testify before judges they have tried “to instruct” could “severely undermine both the perception and reality of impartiality.” Thus, the magistrates association should not observe law enforcement training on how to process a DWI arrest at the state police headquarters under the circumstances presented.