I have found no law at either the state or federal level which would
require a judge to report criminal activity that is disclosed during a
civil case. In fact, the issue has been addressed numerous times by
several states (including Pennsylvania), and in each instance it has
been found that judges are not obligated to report or otherwise take
action if testimony regarding the commission of a crime is given in
court.
"Issues:
1. Must a judge report criminal conduct revealed during unrelated litigation?
2. May a judge report criminal conduct revealed during unrelated litigation?
3. May a judge use judicial stationery to report criminal activity
revealed during unrelated litigation?
Answers:
1. No, but see the discussion below.
2. Yes, but see the discussion below.
3. Yes.
[ . . . ]
Insofar as we can determine, every judicial ethics advisory committee
that has addressed Issues (1) and (2) has determined that a judge is
under no ethical obligation to report criminal activity disclosed in
civil litigation. Those committees also have, in the main, concluded
that a judge is not prohibited from reporting evidence of such illegal
activity, in appropriate circumstances. See Florida Advisory Opinion
78-4; Alaska Formal Ethics Opinion 17 (1993); Alabama Advisory Opinion
86-281; Arizona Advisory Opinion 92-15; Georgia Advisory Opinion 166
(1992); Illinois Advisory Opinion 96-13; Louisiana Advisory Opinion 73
(1987); Oregon Advisory Opinion 86-1; Pennsylvania Advisory Opinion
95-1; Washington Advisory Opinion 93-11; Washington Advisory Opinion
02-09; Michigan Advisory Opinion C1-1177 (1988); U. S. Compendium of
Selected Opinions Sec. 1.1(a)(b) (1995); Utah Informal Opinion 00-03;
Vermont Request for Advice 2827-1 (November 10, 1997); See also
Virginia Judicial Ethics Advisory Committee Opinion 01-1."
Maryland JUDICIAL ETHICS COMMITTEE
Opinion Request Number: 2004-07
http://www.courts.state.md.us/ethics/op200407.pdf
"Reporting Illegal Activities Disclosed During Court Proceedings
1. If a litigant testifies in court that he or she has failed to pay
income taxes, is the presiding judge ethically required to report this
probable felony to the appropriate federal authorities?
Answer: No, but see discussion.
[ . . . ]
Discussion
Whether judges may - or must - report illegal activity to which they
have become privy is not addressed in the Code of Judicial Conduct.
Consequently, a judge may report suspected violations, or decline to
report them, as his or her judgment and conscience dictate. It is a
matter within the judge's sound discretion.
Some caveats may be helpful in deciding how to exercise this
discretion. One of a judge's general responsibilities is to adjudicate
only the controversy before the court and 'not to allow the
proceedings to be used for any other purpose.' A.B.A. Standards
Relating to the Function of the Trial Judge, June 1972, at 25. In
deciding whether to report suspected criminal violations, a judge may
wish to consider whether one party's disclosure of another party's
illegal activities was designed to embarrass the other side or gain a
tactical advantage in the lawsuit extraneous from the merits.
On the other hand, Canons 1 and 2 impose on judges the duty to uphold
the integrity of the judiciary and promote public confidence in it. A
courtroom is not a 'duty free zone' in which serious crimes may be
admitted with impunity. A blanket judicial attitude of 'hear no evil,
see no evil, report no evil' does not inspire public confidence.
Depending on the circumstances, there may be occasions in which the
sound exercise of discretion requires a judge to report criminal
wrongdoing which has surfaced in court."
Arizona Supreme Court: ADVISORY OPINION 92-15
http://www.supreme.state.az.us/ethics/ethics_opinions/92-15.pdf
"Topic: Obligation of judge to report to appropriate prosecuting
authority criminal conduct disclosed during a witness?s testimony.
Digest: A judge is not required to report criminal conduct disclosed
during a witness?s testimony.
References: Illinois Supreme Court Rule 63B(3), Code of Judicial
Conduct, Canon 3B(3); Illinois Supreme Court Rule 62A, Code of
Judicial Conduct, Canon 2A; Illinois Judicial Ethics Committee (IJEC)
Opinion 96-13; Alabama Judicial Inquiry Commission Opinion 86-281;
Arizona Judicial Ethics Advisory Committee Opinion 92-15; Florida
Committee on Standards of Conduct Governing Judges Opinion 78-4; Maine
Ethics Advisory Committee Opinion 01-1; New York Advisory Committee on
Judicial Ethics Joint Opinion 88-85, 88-103; Utah Ethics Advisory
Committee Opinion 00-3; Virginia Ethics Advisory Committee Opinion
2001-01; Washington Ethics Advisory Committee Opinion 02-9;
Pennsylvania Judicial Ethics Committee Formal Opinion 99-2."
Illinois Judges Association: Opinion No. 02-01
http://www.ija.org/ethicsop/opinions/02-01.htm
"At least three other states have directly answered the question of
whether a judge must report possible criminal conduct. Each of these
states has determined that the Code does not create an obligation to
report criminal or potential criminal conduct. See Opinion 86-1 of the
Oregon Judicial Conduct Committee; Opinion 86-281 of the Alabama
Judicial Inquiry Commission; and Opinion 73 of the Louisiana Committee
on Judicial Ethics. Although not asked in the opinion request, these
states also determined that a judge is not prohibited from reporting
under the Code. A judge is therefore not ethically required to report
possible criminal conduct, but if the judge feels compelled to do so,
there is nothing that ethically prohibits a judge from reporting.
Although other states have not discussed the specific reasons for
their conclusions (other than the explicit language of the Code
itself) the Committee finds at lease one practical reason for this
finding. A requirement to report illegal activity would impose an
obligation to report suspected speeders, jaywalkers and tailgaters.
Judges should not be ethically required to report, for example, every
person they observe running a red light or a stop sign, although they
certainly should not be prohibited from doing so.
Because judges are not required to report illegal conduct, ethical
considerations will generally not be an issue in deciding whether
judges should make records available. A judge?s ethical obligation is
tied to the judge?s legal obligation. If records are public, or
records are made accessible to prosecuting entities through statute or
rule, then a judge is required to make those records available. If
records are not available to the public and are not made available to
prosecuting entities through statute or rule, then the judge is
ethically obligated to maintain the confidentiality of the records. If
a statute or rule gives a judge discretion as to who may have access
to records, the judge should weigh the relevant legal considerations
in determining whether records should be disclosed."
Utah State Courts: Informal Opinion 00-03
http://www.utcourts.gov/resources/ethadv/00-3.htm
"§ 99-2. Reporting Suspected Tax Evasion.
What, if any, is the responsibility of a trial judge to report
suspected tax evasion to the appropriate tax authority?
This question was asked of the Committee by the administrative judge
of a large metropolitan family court on behalf of the judges of that
court. Recognizing the statewide implications of the inquiry, the
Committee has decided to issue a formal opinion in this matter.
The Code of Judicial Conduct does not mandate reports of suspected tax
evasion to tax authorities. The only mandatory reporting provision in
the Code provides that:
A judge should take or initiate appropriate disciplinary measures
against a judge or lawyer for unprofessional conduct of which the
judge may become aware.
Clearly, this provision of the Canons does not apply to suspected tax
evasion or fraud. The court is not an agent of the tax authorities.
In cases of obvious and egregious fraud, a judge should consider the
possibility that his or her failure to report the fraud may undermine
confidence in the integrity of the judiciary.
Canon 2 provides that:
A judge should respect . . . the law and should conduct himself at all
times in a manner that promotes public confidence in the integrity . .
. of the judiciary.
The decision as to whether and when a case rises to such a level must
be made by the judge on a case-by-case basis.
If a judge makes a decision to report such facts to the appropriate
tax authority, it is the recommendation of the Committee that the
judge do simply that - report the facts without judgment.
At the end of the Code of Judicial Conduct is a section entitled
??Reliance on Advisory Opinions?? which provides that although the
advisory opinions of the Judicial Ethics Committee are not binding
upon the [Judicial Conduct Board and the Court of Judicial Discipline]
and the Supreme Court of Pennsylvania, the opinions shall be taken
into account in determining whether discipline should be recommended
or imposed. The ??rule of reliance?? applies to this Formal Opinion.
However, before engaging in contemplated conduct, any judge who, out
of an abundance of caution, desires a Committee opinion which will
provide advice about the judge?s particular set of facts and to which
the ??rule of reliance?? will also apply, may submit an inquiry to a
member of the Committee, ordinarily, a member serving in the judge?s
Conference zone.
Source
The provisions of this Formal Opinion 99-2 adopted December 10, 1999,
effective December 11, 1999, 29 Pa.B. 6236."
Pennsylvania Code: CHAPTER 33. CODE OF JUDICIAL CONDUCT
http://www.pacode.com/secure/data/207/chapter33/chap33toc.html
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pinkfreud |
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