Opinion 23-94

September 7, 2023

Digest:  Whether a judge may ask a defendant questions about court-ordered treatment when the defendant appears before the judge for a status review is a legal issue beyond our jurisdiction.  It is, however, ethically permissible for the judge to ask legally permissible questions.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 101.1; Opinions 15-230; 15-152.

Opinion:

          The inquiring judge regularly refers criminal defendants for anger management or alcohol/drug treatment programs as part of their dispositions.  The judge asks if it is ethically permissible, when a defendant returns for a status review, for the judge to ask the defendant directly if they learned anything from the program and, if so, how they would use those lessons in their lives going forward.

          Whether or not a judge may ask these or other questions of a defendant who returns to the judge’s court for a status review is a legal question beyond our jurisdiction, and, therefore, we decline to respond (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]; Opinion 15-152).

          Nonetheless, we note that the Rules Governing Judicial Conduct do not prohibit a judge from asking a defendant legally permissible questions (see Opinion 15-230).