January 30, 2020
Digest: A judge’s child’s status as a crime victim, and the judge’s status as witness to the alleged crime, do not raise reasonable questions about the judge’s impartiality in matters involving the attorneys prosecuting and defending the accused. Thus, provided the judge can be fair and impartial, he/she may preside in unrelated matters involving these attorneys, even if defense counsel cross-examines the judge and his/her child.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 14-60; 14-55; 14-51; 90-18; People v Moreno, 70 NY2d 403 (1987).
A judge’s minor child was recently the victim of a crime, to which the judge was a witness. A criminal trial is expected to ensue. The judge asks if he/she may preside in unrelated matters (1) prosecuted by the same assistant district attorney handling the case in which the judge and his/her child are witnesses or (2) defended by the same defense attorney representing the defendant.
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]). Thus, a judge must disqualify him/herself in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, where a judge’s disqualification is not thus mandated, the judge is the sole arbiter of disqualification (see generally People v Moreno, 70 NY2d 403 ).
We have previously addressed a judge’s obligations when his/her first-degree relative is a criminal defendant, and the attorneys prosecuting or defending the relative appear before him/her in unrelated matters (see e.g. Opinion 14-60). Here, however, the judge’s child (likewise a first-degree relative) is not the target of the criminal proceeding but is, instead, the alleged crime victim. The judge and his/her child expect to participate as witnesses in the trial of the accused.
We have said a judge may preside at a criminal trial where the defendant is represented by an attorney who cross-examined the judge as a witness in a civil proceeding in another court (see Opinion 90-18). As we explained (id.):
Should the judge conclude that [his/her] experience with the attorney in question will prevent [his/her] presiding at the pending criminal trial in a fair, impartial and unbiased manner, then the judge, sua sponte, should recuse [him/her]self. However, the mere fact that the judge was cross-examined in a civil proceeding by an attorney who will be representing a defendant in a criminal jury trial before the judge, is not a ground for mandatory recusal or disqualification.
We applied the same reasoning to a judge who was called as a witness during a second-degree relative’s criminal trial (see Opinion 14-51), expressly noting that the judge’s obligations in other matters involving the attorneys who prosecuted and defended the judge’s relative are not altered or extended “merely because the Supervising ADA cross-examined the judge” at trial (id.).
Moreover, we said a judge who is called as a witness “in a criminal case concerning threats allegedly made against the judge” may nonetheless continue to preside over unrelated matters involving the attorneys who are prosecuting or defending that criminal case, provided the judge concludes he/she can be fair and impartial in the matters before him/her (Opinion 14-55 [noting the judge’s testimony before the grand jury contributed to the defendant’s indictment]). Although the judge was the alleged crime victim, we noted that a litigant’s threats of violence against a judge do not, without more, cause the judge’s impartiality to be reasonably questioned when that litigant appears before the judge, and of course “neither the defense counsel nor the prosecutor was involved in threatening the judge” (id.).
Here, too, we believe the judge’s child’s status as the alleged crime victim (rather than the criminal defendant) does not raise reasonable questions about the judge’s impartiality in matters involving the attorneys prosecuting and defending the accused. Thus, provided the judge can be fair and impartial, he/she may preside in matters involving these attorneys. This remains true even if defense counsel cross-examines the judge and his/her child (see Opinions 14-55; 14-51; 90-18). The judge has full discretion about whether or not to make any disclosure and whether or not to recuse if a party objects.