2009-34 (October 7, 2009)
Educational Activities; Canon 4
Issue: May a
Judicial Official serve as a judge for a mock trial
conducted as part of an informal continuing
education program for a group consisting of a
psychologist, psychiatrists, resident/students in
child psychiatry and two attorneys?
Response: A Judicial Official
has been asked to serve as a judge for a mock trial
conducted as part of an education program for a
group consisting of one psychologist (the individual
who requested the Judicial Official’s
participation), various psychiatrists (some of whom
are in private practice), residents/students in
child psychiatry, and two attorneys. The program is
part of a seminar on Forensic Psychiatry in which
during the course of a month the students take turns
testifying. Only the residents/students attend
regularly. It is believed that one of the attorneys,
not the requesting psychologist, is responsible for
conducting the seminar. The requesting psychologist,
the only doctor in the group who provides services
in juvenile matters, is on the approved list of
court appointed evaluators and may have occasion to
testify before the Judicial Official. The mock trial
will involve examinations of two expert witnesses in
the context of a custody dispute. The Judicial
Official was advised that the group would like
feedback from the Judicial Official regarding what a
judge wants to know from an expert witness and
“testifying techniques”. The Judicial Official does
not know the names of any of the psychiatrists or
students who will attend. Two attorneys, who do not
practice before the Judicial Official, will
participate. The mock trial is not open to the
general public.
Based on the specific information
provided, the Committee members determined that it
was ethically permissible in accordance with Canon
4(1) for the Judicial Official to participate in the
mock trial educational program, subject to the
following conditions:
(1) The Judicial Official
should be generally willing to participate in
appropriate educational exercises for other groups
of court appointed evaluators or expert witnesses,
if requested and available.
(2) The Judicial Official
should limit his or her rulings and discussion to
the hypothetical facts in the mock trial example and
should not accept questions beyond the scope of
those matters from those attending the program. In
addition, the Judicial Official should not comment
on a pending or impending matter in the courts.
(3) The Judicial Official
should not provide legal advice or give training on
“testifying techniques” (such as training regarding
a witness’s tone of voice, hesitation or readiness
to answer, the look of the witness, the witness’
carriage, gestures, zeal, expressions, use of eyes,
shrugs, pitch of voice, air of candor, etc.), but
may comment on proper courtroom attire and the
processes and procedures followed in the courtroom.
(4) The Judicial Official
should not suggest a particular interpretation of a
disputed legal issue or give opinions that would
cast doubt on the Judicial Official’s impartiality
or indicate that the Judicial Official has a
predisposition with respect to a particular case or
with the resolution of any particular issue.
(5) The Judicial Official
should avoid any appearance of bias or favoritism
concerning the content of the presentation, the
presenters or the participants in the continuing
education program.
(6) The Judicial Official
should ensure that his/her participation does not
interfere with the proper performance of the
Judicial Official’s official duties or create
grounds upon which the Judicial Official may have to
recuse him/herself.