Opinion No. 02-01

October 8, 2002

Topic: Obligation of judge to report to appropriate prosecuting authority criminal conduct disclosed during a witness’s testimony.

Digest: A judge is not required to report criminal conduct disclosed during a witness’s testimony.

References: Illinois Supreme Court Rule 63B(3), Code of Judicial Conduct, Canon 3B(3); Illinois Supreme Court Rule 62A, Code of Judicial Conduct, Canon 2A; Illinois Judicial Ethics Committee (IJEC) Opinion 96-13; Alabama Judicial Inquiry Commission Opinion 86-281; Arizona Judicial Ethics Advisory Committee Opinion 92-15; Florida Committee on Standards of Conduct Governing Judges Opinion 78-4; Maine Ethics Advisory Committee Opinion 01-1; New York Advisory Committee on Judicial Ethics Joint Opinion 88-85, 88-103; Utah Ethics Advisory Committee Opinion 00-3; Virginia Ethics Advisory Committee Opinion 2001-01; Washington Ethics Advisory Committee Opinion 02-9; Pennsylvania Judicial Ethics Committee Formal Opinion 99-2.

FACTS

During a mechanic’s lien trial, a witness admits submitting false W-2 forms to the Internal Revenue Service for an employee. The employee testifies that the W-2 forms understating the employee’s income were filed in order to reduce the amount of his child support payments.

QUESTION

Does the judge presiding over the mechanic’s lien trial have a duty to report the filing of the false W-2 forms to the appropriate prosecuting authority?

OPINION

Canon 3B(3) of the Illinois Code of Judicial Conduct requires that a judge "initiate appropriate disciplinary measures" against an attorney or judge who has committed certain types of criminal or other misconduct. Illinois Supreme Court Rule 63B(3). The Code however does not contain a provision requiring a judge to initiate disciplinary measures or report criminal or other types of misconduct of a witness who is not an attorney or judge. Judicial codes generally have not required the reporting of allegations of criminal conduct coming to a judge’s attention during court proceedings because of the impossible burden such a reporting requirement would place on the judiciary. See, Illinois Judicial Ethics Committee Opinion 96-13 (no duty to report violation of truth in lending laws); Alabama Judicial Inquiry Commission Opinion 86-281 (no duty to report criminal offenses disclosed during trial); Arizona Judicial Ethics Advisory Committee Opinion 92-15 (no duty to report "illegal activity"); Florida Ethics Advisory Committee Opinion 78-4 (same); Maine Ethics Advisory Committee Opinion 01-1 (same); New York Advisory Committee on Judicial Ethics Joint Opinion 88-85, 88-103 (same); Utah Ethics Advisory Committee Opinion 00-3 (same); Washington Ethics Advisory Committee Opinion 02-9 (same). To require the reporting of every incident of past or present marijuana use, building code violations, tax violations, bad checks, consumer fraud, or any of the other myriad of criminal violations a judge may become aware of would immerse the judge in side issues, take time away from the judicial function and likely compromise the judge’s appearance of impartiality. See Arizona Judicial Ethics Advisory Committee Opinion 92-15 ("Judges are not ombudsman at large or roving fighters of injustice."); New York Advisory Committee on Judicial Ethics Joint Opinion 88-85, 88-103 (mandatory reporting requirement might dissuade witnesses from telling the truth or encourage threats of criminal prosecution as a settlement technique); Maine Ethics Advisory Committee Opinion 01-1 (reporting requirement could affect a judge’s appearance of impartiality).

While the Illinois Code of Judicial Conduct does not require the reporting of criminal conduct neither does it prohibit the reporting of criminal or other misconduct to the appropriate investigating or prosecuting authority. Indeed, in rare instances, the failure to report a serious or ongoing crime might violate the judge’s duty to "conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Illinois Supreme Court Rule 62A. Also see Pennsylvania Judicial Ethics Advisory Committee Formal Opinion 99-2. Factors relevant to a judge’s determination whether to report criminal conduct include: (1) the nature and seriousness of the offense; (2) conclusiveness of the information before the judge that a crime has been committed; (3) the recent, remote, or ongoing nature of the crime; (4) whether the crime has a victim and if so whether the victim is operating under a disability that would interfere the victim’s ability to report the crime; (5) whether a danger to the community exists or the public trust is involved; and (6) whether the state’s attorney or an assistant state’s attorney was present when the information concerning the criminal activity was disclosed.

Here, the judge’s failure to report the filing of the false W-2 forms would not violate the judge’s duty to promote public confidence in the integrity and impartiality of the judiciary. Therefore, the Code does not require the reporting of the misconduct.