A judge presiding over criminal court cannot participate in a mock trial program to train prosecutors because the course is not open to defense attorneys and the judge’s participation could be viewed as “teaching or giving partisan advice on litigation strategy or tactics” to a one-sided audience, the Committee on Judicial Ethics has held in overruling a seven-year-old precedent.
Opinion 12-44, which appears on page 2 of the print edition of the Law Journal, involves an unidentified full-time judge who is a former prosecutor and was asked to judge a mock trial competition designed to train young prosecutors. The committee said the judge cannot ethically take part for the same reason that judges have been advised not to teach police officers how to prosecute traffic cases or how to draft a proper accusatory instrument, or teach newly employed institutional defense attorneys cross-examination techniques—because their participation could create a perception of bias.
In 2005, the committee “cautiously approved” a judge’s participation in a mock trial that was conducted as part of a training program for lawyers representing battered women (Opinion 05-134). But in its new opinion, the committee concluded “that it would be difficult, if not impossible, for a judge who is presiding over and critiquing a mock trial as part of a trial advocacy program for a ‘one-sided’ audience to avoid the appearance that he/she is teaching or giving partisan advice on litigation strategy or tactics to that ‘side.’”
The committee said in a footnote that the new rule is consistent with rules involving non-judicial employees (see Opinion 09-129, which said a judge should not permit his clerk to critique a course provided by the New York Prosecutor’s Training Institute).