May a judge search the judiciary’s case system for a defendant’s criminal history before arraignment?

Plain-English summary

A judge asked whether the judiciary’s case management system could be searched before arraignment for a defendant’s criminal history relevant to setting bond. The committee considered the prohibition on ex parte contacts and independent investigation in Rule 21-209. [Source: Opinion 14-01, p. 1]

The committee reasoned that a conviction is an adjudicative fact and that court records and the judiciary’s case system are sources for judicial notice under Evidence Rule 11-201. It concluded that the Code did not prohibit the described search. [Source: Opinion 14-01, pp. 1–2]

The committee also considered impartiality. It found no unfairness in considering judicially noticeable information for arraignment if the judge disclosed it there. Although the cited rules did not expressly require notice when the court acts on its own, the committee said the judge must inform the parties at arraignment of adjudicative facts considered beforehand. [Source: Opinion 14-01, p. 2]

In practice

The holding concerns a search of the judiciary’s case management system for judicially noticeable criminal history before arraignment. The opinion requires disclosure at arraignment of facts the judge considered before the hearing. [Source: Opinion 14-01, pp. 1–2]

Common questions

Q: Does Rule 21-209 bar the described case-system search?

A: No. The committee treated court records as a proper source for judicial notice, which Rule 21-209(C) permits the judge to consider. [Source: Opinion 14-01, pp. 1–2]

Q: Must the judge tell the parties about facts considered before arraignment?

A: Yes. The committee said the judge must disclose those adjudicative facts at arraignment, even though it found no express notice requirement in the two rules it discussed. [Source: Opinion 14-01, p. 2]

Q: Did the committee find that considering criminal history necessarily showed unfair bias?

A: No. It found the information relevant to arraignment and said using judicially noticeable information was not unfair when disclosed at the hearing. [Source: Opinion 14-01, p. 2]

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-209(A) and (C), judicial notice under Evidence Rule 11-201(A), (B)(2), and (C), and considered judicial impartiality under Rule 21-100 and prejudice under Evidence Rule 11-403. [Source: Opinion 14-01, pp. 1–2]

Citations and references

New Mexico Code of Judicial Conduct:

• Judicial conduct rules: 21-209(A), 21-209(C), and 21-100. [Source: Opinion 14-01]
• Evidence rules: 11-201(A), 11-201(B)(2), 11-201(C), and 11-403. Source: Opinion 14-01.

See also

• NM Judicial Ethics Op. 17-03: Newspaper Volunteer Offer
• NM Judicial Ethics Op. 22-02: Attending a Daughter’s Criminal Case

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 14-01

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.

RECEIVED
JAN 17 2014

SUPREME COURT
LAW LIBRARY

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Hon. Marie A Baca

[illegible redacted text]
Prof. Robert L. Schwartz
Hon. Freddie Romero
Hon. Sandra W. Engel

January 17, 2014

Re: Judicial Advisory Opinion No. 14-01

You have asked the Advisory Committee on the Code of Judicial Conduct whether it is permissible under the Code of Judicial Conduct for you to search the judiciary’s case management system prior to an arraignment to ascertain the criminal history of a defendant who will be appearing before you. You believe that such information is necessary for your understanding of the risk to the safety of the community when determining the appropriate bond.

The issue you raise is addressed in Rule 21-209 NMRA with regard to ex parte communications. As a general rule, subject to exceptions that are not relevant to your inquiry, a judge “shall not initiate, permit or consider ex parte communications . . . outside the presence of the parties or their lawyers, concerning pending or impending” cases. Rule 21-209(A). Specifically, the rule provides that “[a] judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Rule 21-209(C).

A criminal record is a type of fact that “may properly be judicially noticed.” Under the Rules of Evidence, a court may take judicial notice of an adjudicative fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Rule 11-201(A), (B)(2) NMRA. A conviction, by its very nature, is an “adjudicative” fact. Court records are subject to judicial notice. See State v. Tave, 1996-NMCA-056, ¶ 15, 122 N.M. 29, 919 P.2d 1094 (noting that the status of a felon may be proven by judicial notice of a prior felony conviction) (overruled on other grounds, State v. Tollardo, 2012-NMSC-008, 275 P.3d 110); State v. Ross, 1986-NMCA- 015, ¶ 8, 104 N.M. 23, 715 P.2d 471 (taking judicial notice of court records in the case); State v. Deats, 1971-NMCA-136, ¶ 12, 83 N.M. 154, 489 P.2d 662 (taking judicial notice of the defendant’s conviction in proceeding for post-conviction relief). The Committee believes that the judiciary’s

case management system is the type of source addressed in Rule 11-201(B)(2) “whose accuracy cannot reasonably be questioned.” Moreover, as expressly stated in Rule 11-201(C), a court “may

take judicial notice on its own.’

Your inquiry raises the tangential issue of whether a criminal history search would establish an impermissible bias or prejudice that would affect your impartiality. See Rule 21-100 NMRA (“A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.””). However, all information or evidence that a judge receives in a case has the potential to alter or prejudice the judge’s decision. See State v. King, 2012-NMCA-119, ¶ 21, 291 P.3d 160 (“The admission of evidence is not unfairly prejudicial simply because it damages a party’s cause.”). Only unfair prejudice is impermissible. See Rule 11-403 NMRA (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of .-... unfair prejudice ....”). Given the purpose of an arraignment, a criminal history is relevant to the judge’s determination. The Committee does not believe that it is unfair for a judge to use information available to the judge under the Rules of Evidence for judicial notice, provided that the judge discloses the information at the arraignment.

The Committee therefore believes that the Code of Judicial Conduct does not prohibit you from searching the judicial case management system prior to an arraignment. However, although there is no express requirement in either Rule 21-209 or Rule 11-201 that the court inform the parties when taking judicial notice on its own, the Committee nevertheless believes that you must inform the parties at the arraignment of adjudicative facts that you have considered prior to the arraignment.

Very truly yours,

James J. Wechsler

Chair

cc: Paul L. Biderman, Esq.
Hon. Sandra W. Engel
Hon. Freddie J. Romero
Professor Robert L. Schwartz