Ohio Board Advisory Opinion Op. 22-08

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

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.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™ 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 2

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.’ 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.

Op. 2022-08 3

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.