January 28, 2016
Digest: The Committee cannot comment on legal questions, such as whether a judge may, on his/her own initiative and before the parties’ first appearance, request and review grand jury minutes and/or discovery materials produced to the defense. Should the judge determine such conduct is legally permitted, however, the judge must be careful to avoid any impermissible ex parte communications.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.3(B)(6); 101.1; Opinions 10-114; 91-118.
A judge who will be presiding over the trial stage of a criminal case asks if he/she may request from the prosecutor’s office, before the parties’ first appearance, copies of: (1) discovery materials the prosecution previously produced to the defense and (2) grand jury minutes previously reviewed by the pre-trial judge. The judge believes such items will help him/her identify potential evidentiary issues, such as a possible need for an interpreter, that may need to be explored with counsel in advance to avoid unnecessary trial delays. The judge wishes to take the initiative because, in his/her experience, these kinds of issues may delay trial if not timely addressed, and many attorneys are otherwise unprepared to deal with these issues.
Questions about whether a judge may, on his/her own initiative, request and review grand jury minutes or discovery before the parties’ first appearance are essentially legal questions on which the Committee cannot comment (see Judiciary Law § 212[l]; 22 NYCRR 101.1; Opinion 10-114).
If the judge determines that requesting and reviewing such materials is legally permitted and/or required under the circumstances, it is ethically permissible to do so.1 However, in making any legally permitted request for such materials, or pointing out evidentiary issues that may need to be addressed to avoid trial delays, the judge must be careful to avoid any impermissible ex parte communications (see 22 NYCRR 100.3[B] [“a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers,” unless an exception applies]).
1 Even if a judge’s good-faith interpretation of governing law is incorrect, “[t]he appellate process is available to correct legal errors made by trial courts” (Opinion 91-118).