2010-11 (May 6, 2010)
Event, attendance/appearance; Educational activities; Speaking
Canons 1, 2 & 4; C.G.S. § 54-142a

Issue: May a Judicial Official speak before a group of doctors, lawyers and others at an out-of-state conference hosted by a non-profit organization regarding the Judicial Official’s personal views of the particular scientific evidence that was presented in a case that the Judicial Official presided over? If so, may the Judicial Official accept an honorarium and reimbursement of expenses for the cost of the conference, travel and lodging?

Response: Based upon the information provided, including that the underlying case that the Judicial Official has been asked to discuss is a criminal case which resulted in a judgment of not guilty and the Judicial Official has been asked to discuss his/her personal views of the scientific evidence in the case, the Committee members determined as follows:

1:

Pursuant to C.G.S. § 54-142a (a), all police and court records pertaining to such a judgment of not guilty were required to be erased upon the expiration of the period of time to file a writ of error or an appeal, since no such writ or appeal was filed. Furthermore, pursuant to C.G.S. § 54-142a (e), “The clerk of the court or any person charged with the retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such records shall not disclose to anyone, except the subject of the record … information pertaining to any charge erased under any provision of this section ….” While C.G.S. § 54-142a (h) excludes transcripts from the definition of “court records” that are subject to erasure and the case law makes clear that the erasure of a charge does not serve to obliterate a person’s memories1, consistent with the foregoing statutes and Canon 1 (a judge should participate in establishing, maintaining, and enforcing, and should observe, high standards of conduct) and Canon 2(a) (a judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), a Judicial Official should not discuss specific information that is attributable to an identifiable erased case. Since the Judicial Official has been requested to present his/her views of the scientific evidence presented in a particular erased case in which a not guilty judgment was rendered, the Judicial Official should not do so. Based upon the foregoing, the Committee declined to address the question regarding an honorarium and reimbursement of fees.

With respect to the issue as to whether the Judicial Official may discuss his/her personal views of the particular evidence presented in the case, the Committee members determined as follows:

2:

Canon 2 (a) directs that a judge respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. It was the unanimous opinion of the Committee that discussion of a Judicial Official’s personal views of the scientific evidence that was presented in a particular case and elaborating beyond what is specifically stated in an oral or written ruling would impugn the integrity of the judicial office in violation of Canon 2 and, in the event of any future civil litigation stemming from the criminal case, may cast doubt on the Judicial Official’s capacity to impartially decide a related issue that may come before him/her in violation of Canon 4. Based upon the foregoing, the Committee declined to address the question regarding an honorarium and reimbursement of fees.

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¹ “The Erasure Act was not intended to obliterate memory or to exclude any testimony not shown to have been derived from erased records. See Rawling v. New Haven, 206 Conn. 100, 109, 537 A.2d 439 (1988); State v. Marowitz, supra, 453 (Shea, J., concurring).” Rado v. Board of Education, 216 Conn. 541, 550 (1990).
The Committee noted that the foregoing opinion does not apply to a general discussion of forensic evidence. If the Judicial Official wishes to seek an opinion concerning speaking on that topic generally, the Committee will gladly provide a supplemental opinion.

Editor’s Note: On June 30, 2010, the Committee considered a request to reconsider its opinion in Informal JE 2010-11. The reconsideration request was denied because it was submitted more than 30 days after the distribution of the opinion and because the request was not formally submitted by the person who requested the opinion. The Committee declined to reconsider JE 2010-11 sua sponte because the request sets forth different facts from those initially presented. The Committee emphasized that the opinion in JE 2010-11 was in response to the facts of the inquiry of the Judicial Official, namely, that the Judicial Official had been asked to discuss his or her personal views of scientific evidence in a particular case beyond what the Judicial Official had stated on the record orally or in writing.