Can a judge attend a law-enforcement training course that is open only to judges, prosecutors, and police?

Plain-English summary

A judge asked whether he could attend a seven-hour course on speed-measuring devices offered by a statewide law enforcement agency. The course was open only to full-time judges, prosecutors, and law enforcement, used law enforcement instructors, and covered the admissibility of and judicial notice and testimony about speed-measuring devices, the kind of evidentiary issues defense counsel routinely challenge.

The Board concluded the judge should not attend. It identified two problems. First, the course content has the potential to present a one-sided, biased perspective on issues that come before the judge; unique access to the operation and reliability of these devices, which defense counsel frequently contest, could cause a reasonable person to question the judge's impartiality in later cases (Jud.Cond.R. 1.2, 2.11), citing New York advisory opinions on similar one-sided presentations. Second, attending creates the appearance of an improper alignment with law enforcement and prosecutorial interests that can erode public confidence in an independent judiciary, a concern heightened when law enforcement instructors train judges on admissibility and judicial notice, matters within the exclusive province of judges. The Board also relied on Jud.Cond.R. 2.4: a judge must not let sponsors convey the impression they are in a special position to influence the judge, and an exclusive course for judges and prosecutors may suggest exactly that. Because the course was offered by law enforcement, open only to law enforcement, judges, and prosecutors, and offered a law-enforcement perspective, the Board concluded a judge should not attend. The Board recommended prospective application of the opinion.

In practice

Under this opinion, a judge should not attend a training course that is sponsored by a law enforcement agency and open exclusively to judges, prosecutors, and law enforcement, because the Board concludes such attendance threatens both the judge's impartiality and the appearance of judicial independence. Per the opinion, the concern is sharpest where the course gives a one-sided perspective on contested evidentiary issues and where law enforcement instructors address admissibility and judicial notice, matters the opinion describes as within the exclusive purview of judges. The Board recommended prospective application of the opinion.

Common questions

Q: Can an Ohio judge attend a law-enforcement training course on speed-detection devices?

A: The opinion concludes a judge should not attend a course of this kind, offered by a law enforcement agency and open exclusively to judges, prosecutors, and law enforcement, because it threatens the judge's impartiality and the appearance of judicial independence.

Q: Why is exclusivity to judges, prosecutors, and police a problem?

A: Per the opinion, an exclusive course may suggest to the public that the sponsor is in a special position to influence the judge's decision-making (Jud.Cond.R. 2.4), and it creates the appearance of alignment with law enforcement and prosecutorial interests.

Q: What was the concern with the course content specifically?

A: The opinion notes the course covered admissibility, judicial notice, and testimony about speed-measuring devices, evidentiary issues frequently challenged by defense counsel and within the exclusive purview of judges, and that law-enforcement-led training on them could cause a reasonable person to question the judge's impartiality (Jud.Cond.R. 2.11).

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 1.2 (promoting confidence in the judiciary; avoiding impropriety and its appearance), Jud.Cond.R. 2.4 (external influences on judicial conduct), and Jud.Cond.R. 2.11 (disqualification and impartiality).

Citations and references

Rules of Professional Conduct:

• Ohio Jud.Cond.R. 1.2 (confidence in the judiciary; appearance of impropriety)
• Ohio Jud.Cond.R. 2.4 and cmt. [1] (external influences on judicial conduct)
• Ohio Jud.Cond.R. 2.11 (disqualification; impartiality)

Other opinions cited:

• N.Y. Jud. Adv. Op. 14-20; N.Y. Jud. Adv. Op. 94-31 (1994): one-sided presentations and law-enforcement seminars
• Ariz. Adv. Op. 03-08 (2003): judges and law-enforcement-sponsored training

See also

• Ohio BPC Op. 1987-013: Judge on a Governmental Task Force
• Ohio BPC Op. 2002-009: Judge Serving on Government Boards and Councils
• Ohio BPC Op. 2021-011: Judge Extrajudicial Teaching and Speaking

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/10/Adv.-Op.-2022-08-Final.pdf

Original opinion text

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

OPINION 2022-08
Issued October 7, 2022

Judge Attendance at Exclusive Training for Members of Law Enforcement and Prosecutors

SYLLABUS: A judge should not attend a training course that is offered by a law enforcement agency and open exclusively to judicial officers, prosecutors, and members of law enforcement.

The Board recommends prospective application of this advisory opinion.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct. 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370 Fax: 614.387.9379 www.bpc.ohio.gov

PATRICIA A. WISE
RICHARD A. DOVE
CHAIR
DIRECTOR
HON. D. CHRIS COOK
D. ALLAN ASBURY
VICE- CHAIR
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2022-08
Issued October 7, 2022

Judge Attendance at Exclusive Training for Members of Law Enforcement and Prosecutors

SYLLABUS: A judge should not attend a training course that is offered by a law enforcement agency and open exclusively to judicial officers, prosecutors, and members of law enforcement.

The Board recommends prospective application of this advisory opinion.

APPLICABLE RULES: Jud.Cond.R. 1.2, 2.4, 2.11

QUESTION PRESENTED:

Whether a judge may attend a training course regarding speed detection devices that is offered by a state law enforcement agency and open exclusively to judicial officers, prosecutors, and members of law enforcement.

OPINION:

Background

A judge has inquired about attending an advertised training course offered by a statewide law enforcement agency. The course is offered exclusively to fulltime judges, prosecutors, and members of law enforcement. The purpose of the course is to familiarize attendees with the theory, technical, and operational aspects of speed measuring devices. The seven-hour course is also designed to assist the attendees in gaining an understanding of the training and operational requirements for the effective operation of
Op. 2022-08
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speed measuring devices. Portions of the course will cover “practical judicial information including admissibility, judicial notice and testimony pertaining to Speed Measuring Devices.” Ohio State Highway Patrol 2022 Training Calendar.1 Instructors for the course are certified in using and repairing speed measuring devices. Written materials are provided to attendees and the course is approved for continuing legal education credit by the Supreme Court of Ohio Commission on Continuing Legal Education.

Analysis

A judge’s attendance at the training course detailed above may impact perceptions of the judge’s independence, integrity, and impartiality.

The information communicated during the training course has the potential to provide both one-sided and biased perspectives of the underlying legal issues related to speed detection devices. N.Y. Jud. Adv. Op. 14-20 (presentation to judges by child abuse expert was one-sided); Jud.Cond.R. 1.2. Unique access to information regarding the proper operation and reliability of speed measuring devices, areas that are frequently challenged by defense counsel at trial, may cause a reasonable person to question the judge’s impartiality in future litigation involving the devices. See Jud.Cond.R. 1.2, 2.11.

A judge’s attendance at the training course also creates the appearance of a close and improper alignment with law enforcement or prosecutorial interests that can erode the public’s confidence in an independent and impartial judiciary and give rise to an appearance of impropriety. N.Y.Jud.Adv.Op. 94-31 (1994) (judges’ attendance at law enforcement sponsored seminar on substance detection devices creates appearance of impropriety); Az. Adv. Op. 03-08 (2003) (judges should not attend seminars or training programs sponsored by or presented at a law enforcement agency in which officers might discuss new devices, technologies, or police procedures); Jud.Cond.R. 1.2. A judge’s independence may be further compromised by his or her attendance because the necessary separation between judicial duties and law enforcement activities is not properly maintained. This is particularly apparent and most concerning when the course, using law enforcement instructors, provides training to judges about the “admissibility,

1 https://www.statepatrol.ohio.gov/doc/2022TrainingCalendar.pdf. Retrieved May 27, 2022.
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judicial notice and testimony pertaining to Speed Measuring Devices” – evidentiary issues that are within the exclusive purview of judges.

In order to maintain public confidence in the judiciary, a judge must be vigilant to not permit others, including the sponsors of training or continuing legal education courses, to convey an impression that the sponsor is in a special position to influence the judge. Jud.Cond.R. 2.4. The fact that the speed measuring device training course is available exclusively to judges and prosecutors may suggest to the public that the course sponsor is in a unique position to have an impact on the future decision-making of judges. Consequently, confidence in the judiciary may be eroded if a judge’s decision-making is perceived to be subject to outside influence through a judge’s attendance at the training. Jud.Cond.R. 2.4, cmt.[1].

Because the training course on speed measuring devices is offered by law enforcement, is open exclusively to law enforcement members, judges, and prosecutors, and offers a law-enforcement perspective, the Board concludes that a judge should not attend the course under these circumstances.