Opinion 16-43

March 16, 2016


Digest:         Provided the judge can be fair and impartial, a criminal court judge who presided over an ex parte search warrant application may later arraign (1) a confidential informant who testified in support of the warrant and/or (2) the target of the search warrant. Neither disclosure nor disqualification is required.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)(i); 100.3(E)(1)(a)-(f); Opinions 14-120; 14-62; 14-58; 12-78; 09-239; 07-78/07-121; 07-49; 98-134; 92-49; 89-104; People v Moreno, 70 NY2d 403 (1987); People v Brown, 24 NY2d 168 (1969).


         The inquiring criminal court judge frequently hears “search warrant applications in which confidential informants and/or police officers appear in camera and provide information that forms the basis of the warrants.” In some cases, the confidential informants “are individuals who have just been arrested themselves but not yet assigned counsel.” Thus, thereafter, the judge may be asked to arraign the confidential informant. Also, the judge is sometimes asked to arraign the person who was the target of a search warrant the judge issued. The judge asks whether he/she may preside in such arraignments, and whether disclosure is required.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned or in other specific circumstances as a rule or law requires (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including when the judge has a “personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][i]).

         Generally, “when the judge’s opinion of a litigant is not drawn from an extrajudicial source but is instead based on the litigant’s conduct before the judge, the judge is not necessarily disqualified from continuing to preside in the matter” (Opinion 14-58; see also Opinion 89-104 [“There is no per se requirement for disqualification of a judge based upon the judge’s having learned facts about a matter in a judicial capacity.”]). In Opinion 12-78, the Committee explained:


During the course of a proceeding, a judge in his/her judicial capacity may be exposed to both admissible and inadmissible information. The Committee has recognized that a judge, due to specialized “‘learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Joint Opinion 07-78/07-121, quoting People v Moreno, 70 NY2d 403, 406 [1987] and People v Brown, 24 NY2d 168, 172 [1969]).

For example, a judge who granted a criminal defendant’s post-trial motion to set aside a jury’s guilty verdict need not disqualify him/herself from presiding over the new trial, unless the judge questions his/her own ability to be impartial (see Opinion 12-78), and a judge need not recuse him/herself solely on the basis of the judge’s past decisions involving a party, even where the decision “was based primarily upon the judge’s assessment of the party’s credibility in that earlier action” (Opinion 98-134). In fact, even where a judge was disqualified from hearing one of two unrelated grounds raised in a post-trial motion to set aside a jury verdict, the Committee advised that disqualification as to the rest of the motion “is best left to the judge’s discretion; if the judge believes, under the circumstances, he/she can be impartial and is willing to preside, the judge may do so” (Opinion 07-49). The Committee has reached similar conclusions when attorneys who regularly practice before the judge also appear before the same judge as parties or witnesses (see e.g. Opinions 14-120; 14-62; 09-239; 92-49).

         The Committee sees no reason to apply a different standard here. Thus, provided he/she can be fair and impartial, a criminal court judge who presided over an ex parte search warrant application and heard a confidential informant’s testimony in camera is not thereafter disqualified from arraigning the confidential informant and/or the target of the search warrant. Neither disclosure nor disqualification is required.

         Of course, if the judge questions his/her own impartiality in a particular case, the judge must not preside.