Joint opinion 88-85 and 88-103

December 8, 1988

Topic:          Judicial obligation to report criminal activity or misconduct of a litigant or witness to appropriate officials.

Digest:         A judge has the discretion to determine whether or not to advise the appropriate enforcement authorities of any criminal activity or misconduct on the part of a litigant or witness that is revealed in the course of a proceeding.

Rules:          22 NYCRR §100.2

Opinion:

         In the course of two trials, each the subject of inquiry by the judge presiding, witnesses admitted to failing to report taxable income, and, in the case of a physician witness, to altering medical records. Both actions were settled before verdict. The trial judges have inquired whether they are obliged to bring the misconduct to the attention of law enforcement, tax or licensing authorities.

         Nothing in the Rules of the Chief Administrator of the Courts [22 NYCRR Part 100] requires that either judge do anything further in these matters. (See also New York City Opinion 82-10 of the Committee on Professional Ethics of the Association of the Bar of the City of New York). The Com mittee concludes that, in the absence of any statutory requirement, the trial judges are not obligated to report the apparent misconduct; they may exercise their discretion in determining whether to report the

actions.

         The desirability or appropriateness of judicial reporting of a crime or misconduct depends upon all the circumstances, such as the nature of the crime, the effect of such report on the administration of justice, and, in particular, on the court's truth determining function, and whether it was revealed by the perpetrators' voluntary testimony. It would be undesirable to impose a mandatory reporting requirement on judges concerning any crimes revealed in testimony that would dissuade witnesses on trial from telling the whole truth or encourage the threat of possible criminal proceedings as a means of pressure, for settlement purposes or otherwise, by one litigant against another. In some circumstances, however, a judge properly may conclude that reporting such a revealed crime is in the public interest.