May a judge help prosecutors or police run a mock trial that trains officers to testify in court?

Plain-English summary

A judge asked about helping with a mock trial organized only by the district attorney's office or law enforcement to train officers to testify in court. The participants would be prosecutors, officers, and trainees. Source: Opinion 12-13, p. 1

The committee acknowledged that judges may teach about law and the legal system. It distinguished the proposed exercise because it would teach one side how to present a case, rather than offer a broader discussion of the law. A judge's involvement could make the public reasonably see the judge as promoting the prosecution's interests, contrary to Rules 21-301(C) and 21-102. Source: Opinion 12-13, pp. 1–2

An officer trained by the judge might later testify in a similar case before that judge, raising disqualification under Rule 21-211(A). The committee concluded that the appearance of bias could impair public confidence in cases involving the officers or training agency and that the Code did not permit this activity. Source: Opinion 12-13, p. 2

In practice

The opinion addressed training exclusively for prosecutors and law enforcement officers on courtroom testimony. Its conclusion rested on the perceived alignment with the prosecution and the prospect of later cases involving trained officers. Source: Opinion 12-13, pp. 1–2

Common questions

Q: Did the committee permit the proposed mock trial training?

A: No. It concluded that a judge's role in training law enforcement witnesses for prosecution-side cases was incompatible with the Code on the described facts. Source: Opinion 12-13, p. 2

Q: Does the opinion forbid all judicial teaching about law?

A: No. It recognized that judges may teach about the law and legal system but distinguished this one-sided witness-training exercise. Source: Opinion 12-13, pp. 1–2

Q: Why did later testimony by a trained officer matter?

A: The committee said the officer might later testify before the judge in a similar case, possibly requiring disqualification under Rule 21-211(A). Source: Opinion 12-13, p. 2

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rules 21-301(B) and (C), 21-102, and 21-211(A). It also cited Comment 1 to Rule 21-301 for the general permission to teach about law and the legal system. Source: Opinion 12-13, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-301(B), (C), Comment 1; 21-102; and 21-211(A). Source: Opinion 12-13

See also

• NM Judicial Ethics Op. 12-06: Public Defender Reference
• NM Judicial Ethics Op. 13-06: Teen Court Training

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 12-13

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

December 3, 2012

Re: Judicial Advisory Opinion No. 12-13

You have requested an opinion from the Advisory Committee on the Code of Judicial Conduct as to whether you may assist with a mock trial organized by the district attorney’s office or a law enforcement agency to train law enforcement officers to testify in court proceedings. It is your understanding that the training would be conducted exclusively by the district attorney’s office or a law enforcement agency and would only involve prosecutors and law enforcement officers and

trainees.

A judge may, subject to the Code, engage in extra-judicial activities, including teaching about the law and the legal system. Rule 21-301 NMRA, comment 1. Rule 21-301(C) specifically prohibits a judge from engaging in extra-judicial activities that “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Moreover, Rule 21-102 requires that a judge “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and avoid even the appearance of impropriety.

In our criminal justice system, the state, acting in its executive capacity, has the responsibility to investigate and prosecute crime. Included within that responsibility is the training of its personnel who fulfill that responsibility. The judiciary, of course, is an independent branch of state government.

As implied by the Code, the independence of the judiciary is essential to continued confidence of the public in the judiciary in performing its function as impartial arbiter within the criminal justice system. See Rule 21-102 (requiring a judge to “act at all times in a manner that promotes public confidence in the independence . . . of the judiciary”). By training law enforcement officers to testify in court through a mock trial, a judge steps away from the judicial role to support the state in performing its role as the prosecutor of crime. The training is not a multi- faceted, scholarly discussion of the law, but rather an instructional session about how to present a case in court. Although the judge may well be advancing the public interest of having trained law enforcement officers properly performing their jobs, that responsibility belongs to the law enforcement community within the executive branch, including the district attorneys. Lawyers within the law enforcement agencies can, and do, regularly carry out this training responsibility. The involvement of a judge attaches the risk that the public may perceive the judge as promoting the interest of the state in its capacity as prosecutor. The Committee does not believe that this perception would be unreasonable.

The Committee further notes that it is entirely possible that an officer you have trained will eventually testify before you in a case similar to the one involved in the mock trial. Under such circumstances, you may be in a position that requires your disqualification. See Rule 21-211(A) NMRA (“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned[.]”). Rule 21-301(B) prohibits a judge from engaging in extra-judicial activities “that will lead to frequent disqualification of the judge.”

The Committee believes that your participation in a mock trial to train law enforcement officers could give rise to a reasonable appearance of bias. This appearance could impair public confidence in your impartiality in cases involving the officers you train or the law enforcement agency that is conducting the training. The Committee does not believe that the Code permits such extra-judicial activity. Very truly yours,

James J. Wechsler
JJW:ow

cc: Hon. Kevin L. Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman
Professor Robert L. Schwartz