Opinion 21-141
October 28, 2021
Digest: A village justice should not permit a local police officer to simultaneously serve in dual roles as the court security officer and as a prosecutor/witness at the same court session.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(B)(2)-(3); 100.3(C)(2); Opinions 21-93; 20-66; 18-92; 13-131; 09-152; 98-148; 96-133; 91-54.
Opinion:
A village justice asks if it is ethically permissible for a village police officer, who writes a significant number of the tickets generated in the jurisdiction, to serve as the court security officer for the village court. The justice explains that while another individual formally serves as prosecutor for all vehicle and traffic law violations in the village court, the village police officer serving in the role of court security officer occasionally interrupts a defendant’s plea negotiations or allocution to offer a competing recollection of the underlying circumstances or a view about the proposed disposition.
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 must “require order and decorum in proceedings before the judge” (22 NYCRR 100.3[B][2]). To that end, not only must the judge personally be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity,” but the judge also must “require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control” (22 NYCRR 100.3[B][3]). In addition, a judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).
A town or village justice may use court security services provided by local, county or state law enforcement agencies or peace officers, except where special circumstances might lead to the erroneous perception that there is some officially sanctioned relationship between the local police department and the court (see e.g. Opinions 21-93; 20-66; 13-131; 98-148). For example, although a town justice “may ordinarily permit police officers to provide court security,” we have said a town justice may not permit the town’s Chief Constable or Police Chief to perform this function (Opinion 21-93; 96-133). We have also said a town justice may not permit a town constable, who is also the court officer in the judge’s court, to act simultaneously as prosecutor in cases involving violations of town ordinances (see Opinion 91-54; accord Opinions 18-92; 09-152).
Here, a local police officer is providing court security during sessions when the court calendar includes traffic tickets personally issued by that officer. As a result, the officer has interjected their own views into the court’s proceedings, as if they were a prosecutor or a witness for the prosecution. Needless to say, such interjections are not within the scope of a court security officer’s proper functions. We conclude that the court security officer is likely to be regarded by the public as serving in a prosecutorial role or as a partisan representative of the police department with respect to the traffic tickets they issued, whether or not formally called to testify as a witness or to participate in plea negotiations. We believe this dual role creates an appearance of impropriety (see Opinions 09-152; 91-54).
Accordingly, we conclude the village justice should not permit this local police officer to simultaneously serve in dual roles as the court security officer and as a prosecutor/witness at the same court session.
We also remind the judge of the obligation to “require order and decorum” in the courtroom (22 NYCRR 100.3[B][2]). The judge may, if desired, consult with court administrators and/or other judges on reasonable steps and strategies to curb inappropriate interjections.