1. Ethical Justice Chapter Eleven: Judicial Ethics

2.  The judiciary is the branch of the criminal justice system that deals with the adjudication and exoneration or punishment of criminal defendants.  This includes everything from arraignment to acquittal; from sentencing to appeals.  A judge or jury, referred to as the trier of fact, determines the legal guilt or innocence of a criminal defendant. The trier also decides the terms of punishment, also referred to as the sentence.

3. Judicial Ethics  Judges preside over trials and appeals as legal arbiters. Judges have two primary roles: 1.They have a responsibility to ensure due process (aka, fairness) in criminal trials 2.They have an obligation to police the courtroom and the courts for bad actors, which includes unethical attorneys and judges.

4. Judicial Ethics  Ethical issues that arise with judges include the following:  Judicial integrity;  Conflicts of interest;  Knowledge of the law; and  Time allotment and caseload

5. Judicial Ethics  Judicial Integrity  Judicial independence ensures that the judge will rule according to the applicable rules and precedents without any external influence.  A requirement of judicial independence, referred to as judicial dispassion, refers to the court’s obligation to conduct itself without emotion of bias.  Failure to remain objective abandons the judicial role and may lead to embroilment, which occurs when a judge becomes so involved in a case that they actually take sides.

6. Judicial Ethics  Conflicts of Interest  A conflict of interest occurs when a person or an agency has competing loyalties, or loyalties that are at odds, because of their need to satisfy multiple roles, duties, or obligations.  When there is a conflict of interest, the judge must recuse themselves, which requires a judge to step aside from hearing a case.

7. Judicial Ethics  Knowledge of the Law  Judges are required to interpret the law and rule on the many legal questions that naturally arise in relation to a criminal trial.  In order to do this, they have an ethical responsibility to be knowledgeable of the law in general; to read up on areas of relevant law when they aren’t; and to read all motions put before them so that they know their own limitations when anticipating the necessity of a ruling.  Time Allotment and Caseload  Judges have an ethical obligation to attend their caseload and budget their time appropriately.  This helps to avoid delays, trial by ambush, and professional disorganization.

8. Improper Influence over the Jury  A jury is a group of men and women lawfully selected, convened, and sworn to investigate a legal dispute and then render an impartial finding in accordance with the law.  Trial by jury is the constitutional right of US citizens.  During the trial, the presiding judge maintains perhaps the single greatest influence over the jury.  They make the rules, decide when the rules have been broken, and dole out any sanctions for infractions. The judge also sets forth the rules for the jurors.

9. Improper Influence over the Jury  Ethical issues related to the improper influence over the jury include the following:  Shaping the facts;  Access to notes and exhibits;  Telegraphing bias; and  Favoritism and vouching

10. Improper Influence over the Jury  Shaping the Facts  The judge shapes both the character of the facts, and any fact patterns, that are available for a jury to consider in their deliberations.  Any fact or finding gathered in relation to a legal proceeding is considered evidence until a judge says it is not.  The sum of evidentiary facts under consideration by a judge or jury in a given case generally does not represent the entire picture of known facts or findings. It represents a judge’s interpretation and reduction of the evidence based on their determination of what is and is not admissible.

11. Improper Influence over the Jury  Access to Notes and Exhibits  The judge controls the jury by deciding whether they may take written notes, and which evidence, records, or testimony they may take with them into their deliberations.  In cases when jurors are not allowed to take notes, they must rely on memory when deliberating.  In cases where note taking is permitted, those jurors who prepared the most complete notes can have an inordinate sway over others.  Jurors tend to take more notes in the beginning and less over time as trial progresses.

12. Improper Influence over the Jury  Telegraphing Bias  The judge wields tremendous influence over the emotional content of the courtroom by virtue of his/her own professional conduct.  A judge’s manner and tone, intentional and otherwise, can improperly telegraph his/her personal agenda or preferences to the jury.  Favoritism and Vouching  The judge engages in improper conduct toward the prosecution and its witnesses by virtue of eliciting favorable proofs, acts of advocacy for the prosecution, vouching for character or testimony, or any other form of obvious favoritism.

13. Ethical Issues with Experts  The court has unparalleled power with respect to expert witnesses. The trial court judge in particular decides:  Whether a proffered witness is actually an expert and in which areas;  Which areas to testimony are admissible in court;  When an expert may testify;  The limits of cross-examination; and  They can intervene to interrupt or question experts at any point.

14. Ethical Issues with Experts  Expert Qualifications, Admissibility and Treatment  A forensic expert is qualified to testify by virtue of knowledge, skill, experience, training, or education at the discretion of the judge.  Judges invoke standards for the admissibility of experts to screen out junk science or unproven methods of analysis.

15. Improper Judicial Behavior  There are some judges that abuse their positions of authority by engaging in behavior that is improper for something in their position of authority.  Examples include: cursing in open court, visiting pornographic websites from chambers, leafing through lingerie catalogs in court, asking rape victims for dates, sexting, etc.

16. Judicial Alertness During Trial  Judges have an obligation to be physically and mentally present when hearing evidence and arguments from either side.  However, judges can routinely be observed in court engages in the following activities: sleeping, reading, taking personal calls, texting, playing games on their computer, and surfing the Internet.

17. Reporting Attorney Misconduct  The judiciary is not above the law, and must abide by their own set of ethical obligations or else risk sanction.  The court has an ethical obligation to report misconduct.

18. Post-Conviction Issues  The following judicial issues are paramount, in state post-conviction:  Failure to understand the legal process  Failure to provide adequate assistance of counsel in state post-conviction  Not providing inmates discovery for their claims  Not allowing evidentiary hearings  Providing no forensic testing on DNA motions  Not making the State look for evidence  Believing a convicted defendants has a viable constitutional claim, or claim of innocence, but refusing to grant relief  Believing that the petitioner has viable claims but wont allow for further development of those claims  Denying a convicted defendant access to court records, or their own trial transcripts.