October 28, 2010
Digest: (1) A judge may serve as a consultant to a professor who will conduct a scholarly research project concerning jurors’ memories during jury deliberations and the implications of jurors’ memories for a judge’s jury instructions (a) if the judge’s participation will not cause his/her impartiality to reasonably be questioned and is not incompatible with judicial office; (b) if the judge does not comment on pending or impending cases; and (c) if, to avoid any perception the judge is using the prestige of judicial office to advance the professor’s private interest, the judge requires the professor to include a disclaimer in any published material, stating that all opinions and proposals expressed are solely those of the professor, not the judge. (2) The judge may permit the professor to include the judge’s name and curriculum vitae in an application for a grant to fund the research project, as long as doing so does not lend the prestige of judicial office to advance the professor’s private interests.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.3(E)(1); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3)(b)(iii); Opinion 10-131; Joint Opinion 09-192/09-231; Opinions 07-188; 00-44 (Vol. XIX); 99-111 (Vol. XVIII); 97-71 (Vol. XVI); 97-56 (Vol. XV); 90-80 (Vol. V); 88-94 (Vol. II); Final Report of the Committees of the Jury Trial Project (2005).
A full-time judge asks whether he/she may serve and be identified as an unpaid consultant to a psychology professor who is conducting a scholarly research project concerning jurors’ memories during jury deliberations and the implications of jurors’ memories, if any, for a judge’s jury instructions. The judge would meet with the professor occasionally to discuss issues that are relevant to the study, to review the professor’s findings, and to discuss further areas of inquiry.
According to the judge, he/she often has discussed recent psychological research with the professor, and the professor has indicated that the judge’s “advice [in the project] would be incredibly helpful, given the topic.”
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge may engage in extra-judicial activities that do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, that do not detract from the dignity of judicial office, or that do not interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]-). Therefore, a judge may “speak, write, lecture, teach and participate in extra-judicial activities” (22 NYCRR 100.4[B]), subject to the Rules Governing Judicial Conduct (see generally Joint Opinion 09-192/09-231 [providing an overview of rules applicable to extra-judicial activities]). In particular, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]).
The Committee previously has advised that the Rules “specifically encourage judges to become involved in extra-judicial activities that concern [the improvement of] the law, the legal system and the administration of justice” (Opinion 07-188). Thus, a judge may participate in a two-day meeting of a non-profit foundation’s research program on adolescent development and juvenile justice and may discuss “the judge’s work in the area of juvenile justice and its implication for research, practice and policy” (Opinion 97-56 [Vol. XV]), so long as the judge avoids making any public comment "about a pending or impending proceeding in any court within the United States or its territories" (22 NYCRR 100.3[B]). The Committee also has advised that a part-time judge may serve on a council which is “studying ways of improving the criminal justice system in the county,” as long as doing so does not impinge on the independence of judicial decision-making (Opinion 99-111 [Vol. XVIII]).
Therefore, it is the Committee’s view that the inquiring judge may serve as a consultant to an academic research project on jurors’ memories, subject to important caveats.1 First, before agreeing to participate in the project, the judge should independently consider “whether the project ... is one which may involve some potential conflict of interest, or raise doubts about the judge’s capacity to decide impartially issues concerning the program. If any such considerations exist, the judge should decline” to participate (Opinion 88-94 [Vol. II] [judge may write letters to support certain not-for-profit agencies’ requests for funding for programs concerning the administration of justice, subject to certain limitations]; see also generally 22 NYCRR 100.4[A]-). The Committee believes that the inquiring judge is in the best position to assess whether conflicts may arise over the course of the project or whether in any particular proceeding the judge’s impartiality might reasonably be questioned as a result of his/her involvement in the project (see 22 NYCRR 100.3[E]).2
Second, the judge must refrain from public comment about a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B]); Opinions 10-131 [judges may respond to a research survey and participate in a follow-up interview on changes in the judges’ courts, but may not comment on pending or impending cases]; 97-56 [Vol. XV] [judge must comply with the public comment rule in the course of participating in a research program]).
Third, to avoid any perception the judge is using the prestige of judicial office to advance the professor’s private interest, the judge should require the professor to include a disclaimer in any published material, stating that all opinions and proposals expressed are solely those of the professor and not of the judge (cf. Opinion 90-80 [Vol. V] [judges should not serve as the editorial board for the publishers of a law book, under circumstances that give the publication a misleading official imprimatur and create the appearance that the judges’ names are being used for commercial purposes]).
The judge asks too if he/she may permit the professor to include the judge’s name and curriculum vitae in the grant application. The professor says, “including [the judge] in the project would be helpful in obtaining funding.”
While a judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), a judge may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][b][iii]).
In the Committee’s view, the context described by the judge – including the judge’s ongoing discussions with the professor about psychological research and the professor’s request to submit the judge’s name and curriculum vitae rather than simply relying on the judge’s title – indicates that the judge’s participation in the research project is based not on the prestige of judicial office, but, rather, on the judge’s long-term interest in, and knowledge of, the topic, as well as the judge’s “real-world” experience working with juries. Moreover, under the rules, the judge could make a direct recommendation to a fund-granting organization about a scholarly research project that seeks to explore the extent of jurors’ memories and the implications for jury instructions because it directly concerns the administration of justice (see 22 NYCRR 100.4[C][b][iii]; Opinions 00-44 [Vol. XIX] [Family Court judge may serve as co-chair of a steering committee seeking a federal grant for mental health services for children and families in the region]; 97-71 [Vol. XVI] [judge may write a letter to a state agency supporting funding of a legal advocacy unit]; 88-94 [Vol. II] [judge may write letters to support a nonprofit agency’s application to fund programs that serve the judge’s court]).
Therefore, pursuant to Rule 100.4(C)(3)(b)(iii) and the Committee’s prior opinions, the inquiring judge may permit the professor to include the judge’s name and curriculum vitae in a grant application for the research project that involves the administration of justice as long as the reason for doing so is to benefit from the judge’s experience and knowledge of the subject matter, and not for the purpose of lending the prestige of judicial office to the grant (see 22 NYCRR 100.2[A]).
1Judicial participation in research projects on jurors’ memories is not unprecedented in New York (see Final Report of the Committees of the Jury Trial Project , available at http://www.nyjuryinnovations.org/). Whether it is preferable for such projects to be organized by court administration is a question of policy, rather than ethics.
2A conflict could potentially arise, for example, if the judge worked closely with a particular juror memory expert during the project, and then that individual were called as an expert witness in the judge’s court. Under the facts presented, however, that risk appears small, because the judge does not plan to consult with the professor’s memory experts and because memory experts who are called in the judge’s court would be testifying about witnesses’ memories, rather than jurors’ memories.