Opinion

Opinion CJE Opinion No. 2007-5

Date: 07/12/2007
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Acting on Children's Educational Television Program

You have been invited to appear as a "presiding judge" on an episode of a public television children's program that is to be filmed in a real courtroom.  The show is in its third season and has received much critical acclaim.  The show is targeted for ages six to ten and challenges individual children, selected by audition, to take on real-life tasks.  The show receives a significant portion of its funding from the National Science Foundation.  Consequently, each episode is designed to teach science as well as other important lessons.

This episode will educate young viewers about the justice system and will include chemistry experiments to discover forensic evidence.  The episode is being developed by a public television station along with an organization devoted to educating the public about the American justice system, both of which are nonprofit institutions.  You have been informed that the program will not be used for fundraising purposes.  The episode will consist of a mini-trial, with young cast members playing the roles of lawyers and expert witnesses in a mock "criminal" case having a children's theme.

The young cast members will be coached by two attorneys from a Boston law firm, who have also assisted in developing the case.  The attorneys will work with the children as they develop the opening statements, direct and cross examination questions, and closing arguments, and learn about proper court etiquette.  The case scenario is intended to be balanced; the jury verdict is not  predetermined.  The attorneys from the law firm will not appear on camera, but will be recognized for their volunteer efforts in the credits.

Your role for the program is to serve as "presiding judge," interacting with the young "lawyers" to facilitate the order of the trial; ruling on objections if they have any; giving very brief scripted instructions to the jury on the subject of reasonable doubt, and receiving the jury verdict.  The courtroom filming is estimated to take three to four hours.  You will not be compensated for your participation.  Presumably, however, you will be recognized for your efforts in the credits.

Section 4 B of the Code of Judicial Conduct states that, "[s]ubject to the requirements of th[e] Code, a judge may speak, write, lecture, and teach concerning legal and nonlegal matters and may participate in legal and nonlegal activities."  Your participation in the public television program qualifies as a teaching activity, crafted in a manner to reach its intended audience.

There are two potential, interrelated concerns under Section 2 B of the Code, although, in the final analysis, neither of them is an impediment to your participation.  First, Section 2 B provides that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others."  Any concern about lending the prestige of judicial office to advance the private interests of the show's producers or underwriters must be read in light of the express provision that judges may teach.  You presumably were identified for the role in the television program because you are a judge and can bring that expertise to the program.  The educational benefit, however, flows to all viewers of the program and not just a select few, which reduces the concern that your participation is advancing the private interests of either the producers or underwriters.  In addition, you are participating as part of an ensemble, which reduces any impression that the prestige of your judicial office is central to the project.  Finally, while success of the series may advance the interests of the producers and underwriters, you are simply one of a number of participants in a single episode of that series.  As such, your contribution to advancing those interests is, at best, minuscule and is wholly incidental to the show's larger educational goal.

Second, Section 2 B also states that a judge shall not "convey or permit others to convey the impression that they are in a special position to influence the judge."  The fact that you and attorneys from a particular law firm support the same educational project does not, per se, give the impression that the firm or those lawyers are in a special position to influence you.  Your shared involvement in this project is limited to a single episode of a children's television show.  The attorneys will guide the students in the traditional "lawyer" role, and you will be participating in the judicial role.  The fact that the attorneys are helping the students "appear" before you does not support any inference of favoritism, just as there is no inference of favoritism toward attorneys who appear regularly before you in your "real" courtroom.

In conclusion, the Code does not preclude your involvement in this educational television show.

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