Opinion 19-163


January 30, 2019


Digest:         (1) Absent a legal obligation to do so, a court must not help the prosecution meet its discovery obligations by holding and/or delivering discovery packets prepared by law enforcement agencies. (2) A town justice may not meet with the special prosecutor to discuss criminal justice reforms unless attorneys representing defense interests are also invited to attend.


Rules:          CPL 245.10; 245.20(1)-(2); 22 NYCRR 100.0(S); 100.1; 100.2(A); 100.3(B)(8); Opinions 17-88; 15-197(A); 14-154; 13-124/13-125/13-128/13-129; 12-68; 10-196; 10-177; 00-95.




         A town justice asks if he/she may accede to the special prosecutor’s request for assistance with new discovery obligations enacted as part of recent criminal justice reforms (see e.g. CPL 245.10 [“The prosecution shall perform its initial discovery obligations … not later than fifteen calendar days after the defendant’s arraignment”]; 245.20[1]-[2] [initial discovery obligations]). In particular, the judge asks if he/she may accept discovery packets from law enforcement and either hold them for the prosecutor to pick up or deliver them to defendants at arraignment on behalf of the prosecutor. The judge also asks if he/she may meet with the prosecutor and/or the town board to discuss the practical implications of these new discovery obligations or other issues relating to the criminal justice reforms.


         A judge must act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]). Thus, judges must “maintain their independence from prosecutors and not participate or assist in what are essentially the prosecutor’s duties” (Opinion 15-197[A]).


         We have said a court may not agree to “receive mail addressed to a prosecutor at the court address” (Opinion 10-177). Nor may a court distribute materials prepared by the prosecution to defendants (see Opinions 10-196 [document entitled “Notice of Immigration Consequences”]; 00-95 [form requesting information about defendant’s “criminal record, past traffic convictions and other information”]; 12-68 [“informational packet … to inform defendants how they may request a reduction of an alleged Vehicle and Traffic Law violation”]). In Opinion 14-154, a district attorney asked the court to compile “a list of all pending offenses” to help the prosecution comply with its constitutional “obligation to disclose exculpatory materials to defendants.” We likewise said this was impermissible. As we explained (id. [citations omitted]):


If the inquiring judge voluntarily assumed the prosecution’s legal or administrative responsibilities by searching public court records and creating, maintaining, and producing requested information specifically and exclusively for the district attorney and his/her staff – absent a legal obligation for the inquiring judge to do so – the judge would similarly risk compromising the independence and impartiality of the judiciary as well as its appearance.


The same principles apply here. Absent a legal obligation to do so, the court must not serve as an intermediary for the prosecution by holding and/or delivering the prosecution’s discovery packets in order to help the prosecution meet its discovery obligations (see Opinions 14-154; 10-177; 12-68; 00-95).1


         As for meeting with the special prosecutor to discuss these or other criminal justice reforms, with or without the town board, this is permissible if the meeting will be “balanced among lawyers representing all interests before the court,” including defense interests (Opinion 17-88). Assuming members of the defense bar are expressly invited and given a reasonable opportunity to participate, the judge’s participation is not rendered impermissible if they decline an express invitation to attend (see Opinion 13-124/13-125/13-128/13-129). However, the judge should not comment on the constitutionality or wisdom of the criminal justice reforms at such meeting and must otherwise abide by generally applicable limitations on judicial speech and conduct, including the prohibition on public comment on pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B][8]).


1 If the prosecution cannot meet its 15-day deadline without the court’s assistance, voluntarily providing such assistance could be seen as shielding prosecutors from the consequences of non-compliance. Moreover, a court that undertook this role could easily be drawn into disputes between the parties concerning purported delays or deficiencies in the prosecution’s production.