March 16, 2016
Digest: Unless legally required, a town justice may not assist prosecutors by (a) arranging meetings with the prosecutor’s prospective witnesses and/or (b) instructing such witnesses to bring lab reports or other possible evidentiary materials to court.
Rules: 22 NYCRR 100.0(S); 100.1; 100.2(A); Opinions 14-12; 13-183; 12-68; 10-196; 00-95.
A town justice advises that a local prosecutor has asked the town court to “contact witnesses, complainants and officers” to set up conferences between them and the prosecutor at the courthouse. He/she also asks the court to instruct a police officer to “bring lab reports” for a particular upcoming court appearance. The judge asks if complying with such requests is ethical.
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”]). In particular, as the Committee has repeatedly advised, judges must maintain their independence from prosecutors and not participate or assist in what are essentially the prosecutor’s duties (see e.g. Opinion 13-183).
The Committee believes a judge must decline to act as the prosecutor’s intermediary by setting up meetings with prospective witnesses, or by instructing prosecutor’s witnesses to bring lab reports or other evidentiary materials to court absent a legal duty to do so (see e.g. Opinions 14-12 [judge may not sua sponte advise defendants of the prosecutor’s anticipated plea offer and explain its advantages]; 12-68 [the court must not distribute an informational packet the district attorney has prepared to inform defendants how to request a reduction of an alleged Vehicle and Traffic Law violation pending in the judge's court]; 10-196 [judge may not accede to the district attorney’s request the judge to allocute a plea in a particular manner and should not distribute notices furnished by the prosecutor to criminal defendants]). Such efforts are virtually certain to be seen as participating in “what is essentially the work of the prosecutor” (e.g. Opinion 14-12, quoting Opinion 00-95), and are therefore prohibited.