March 13, 2014
Digest: 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.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 12-44; 10-166; 09-127; 04-78; 04-34; 04-20; 03-101.
The inquiring supervising judge states that a local medical professional, who is an expert in the field of child abuse, has offered to present a judicial training to Family Court judges in the inquirer’s district. The District Attorney and/or the Department of Social Services regularly consult with and retain the medical professional to appear in court on their behalf in child abuse related matters. The medical professional also lectures extensively on the topic to medical, law enforcement, child protective services, and community agencies. The judge asks whether he/she may permit the medical professional to present a judicial training to Family Court judges, either in the judicial district as a whole, or in a particular county within the district. The judge also asks whether any expert who regularly consults with and testifies on behalf of a prosecuting agency may present such judicial trainings.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must not convey the impression that others “are in a special position to influence the judge” (22 NYCRR 100.2[C]). Therefore, under the circumstances presented, the Committee believes it is ethically impermissible for Family Court judges to attend a judicial training presented by a medical professional who is an expert in the field of child abuse and who regularly consults with and testifies on behalf of local prosecuting agencies. To do so could erode the public’s confidence in the judiciary’s impartiality.
The Committee previously has advised that judicial participation in one-sided training or educational programs should be avoided. For example, judicial participation in a student legal education program designed and sponsored solely by the district attorney’s office “could create the impression of improper alignment with the prosecutorial interests[,]” but that problem would be remedied if the criminal defense bar was invited to participate in the design, presentation, and sponsoring of the program (see Opinion 09-127). Similarly, participation in seminars or other extrajudicial events should not occur if they are “so one-sided as to create an appearance that the judge’s neutrality might be compromised” (Opinion 10-166 [organizing a continuing legal education program permissible where a broad spectrum of domestic violence issues will be addressed by representatives of various constituent groups involved in those issues]); cf. Opinion 12-44 [participation in district attorney’s office’s skills training program as mock trial judge not permitted where milieu makes it “difficult, if not impossible ... to avoid the appearance that” the judge is teaching or giving advice on litigation strategy or tactics to one side]). As the proposed presenter appears to testify as an expert usually, if not exclusively, on behalf of the prosecution and the Department of Social Services, that raises a concern the expert’s viewpoint would be one-sided.
Although the judges in the proposed training program would be attendees rather than organizers or presenters, similar concerns about the appearance of partiality arise where a judge simply attends a one-sided presentation. The Committee has previously advised that a judge should not attend a New York State Division of Criminal Justice Services conference intended solely to enhance efforts to prosecute domestic violence and sexual assault cases, because the judge’s attendance would undermine public confidence in judicial impartiality (see Opinion 04-20). The Committee has, however, distinguished events in which some, but not all, of the presentations are one-sided: attendance is permissible as long as the judge does not participate in the one sided presentations (see Opinion 04-34 [judge may attend a New York State Summit on Elder Abuse but must avoid participating in the law enforcement or prosecution oriented presentations]). Here, the proposed training is not a balanced program presenting a panel of opposing views. Rather, it is confined to a presentation by one expert who regularly appears on behalf of one side in child abuse related cases. Attending this type of training, which clearly has the appearance of being one-sided, would impermissibly compromise the appearance of judicial impartiality.
In addition, that the expert presenting the training regularly testifies before the judges attending the training also could impair the public’s confidence in the attendees’ impartiality. The Committee has cautioned against the appearance of impropriety that may result from too close contact between judges and expert witnesses (see e.g. Opinions 04-78 [“possible perceptions of partiality or predisposition” arise when experts on child protective issues serving on advisory committee with Family Court judge appear as witnesses in adversary proceeding before the judge, and require disclosure and recusal, subject to remittal]; 03-101 [judges proposing to teach law school class should not, themselves, invite experts who regularly appear before them to be guest lecturers, as it might evince partiality]). The expert here is not a national figure who might rarely, if ever, testify locally, but rather one who consults with and testifies on behalf of local prosecutorial agencies on a regular basis. A judge’s ability to impartially assess an expert witness’ credibility might reasonably be viewed as compromised where that witness, regularly employed by one side, previously has been the sole presenter of training provided to the judge on an issue about which the witness will be testifying. Questions about the judge’s impartiality will likely occur to a defendant if a prosecuting agency’s regular expert witness trains judges for the court system, lending an impression that the expert already has the court’s imprimatur.
Upon the facts presented, the inquiring Supervising Judge should not permit the local medical professional to present a judicial training on an issue about which the medical professional regularly testifies in local courts as an expert witness for the prosecution.