Wednesday, April 25, 2012
The Florida Judicial Ethics Advisory Committee has a recent opinion:
Whether a Judge has an obligation under the Code of Judicial Conduct to report possible criminal activity the judge becomes aware of during judicial proceedings.
During a hearing concerning an unborn child, the inquiring judge learned that the parents of this child were 16 and 21 years old, revealing a probable sex crime by the 21-year old. Only the 16-year old was represented by counsel.
In JEAC Opinion 78-4, a majority of the committee concluded that although there is no obligation to report criminal behavior revealed during a hearing, neither is there any ethical prohibition, thus leaving the determination to the judge’s own discretion. That opinion also contains a discussion of the “misprision of felony” statute, but concluded that it did not apply to the judge.
We therefore conclude that a judge who becomes aware of possible or probable criminal acts during a judicial proceeding has no obligation under the Code to report them.
The Committee notes, however, that this opinion is limited to the judge’s obligations under the Code of Judicial Conduct. The broader question of whether the judge may or may not have a moral, statutory or other non-Code obligation to report information gained during a judicial proceeding is beyond the authority of this Committee.
Therefore, the Committee concludes that a judge who becomes aware of possible criminal activity as a result of information received during court proceedings has no duty under the Code to report the matter, and that the judge is no different than a lawyer, a litigant, or a member of the public attending the court event. The judge may voluntarily report the information, but the protections of Canon 3D(3) may not apply, and there may be further ethical consequences, such as disqualification, depending on the facts involved.