One of functions of the 40+ judicial ethics committees across the county is to apply the canons of judicial conduct to newly-emerging issues. Recent examples include social media and problem-solving courts.

The latest issue arises from a recent initiative of the U.S. Citizenship and Immigration Services agency that asks judges to complete forms in connection with the petitions non-citizens for temporary immigration benefits that will enable them to remain in the country and available as witnesses in criminal prosecutions The petition must be accompanied by a “I-918B” form from a federal, state, or local official that certifies that the non-citizen is the victim of qualifying criminal activity (for example, rape, torture, or slave trade) and is, has been, or is likely to be helpful in the investigation or prosecution of that activity.

In a judicial ethics opinion, the North Carolina Judicial Standards Commission advised that judges should not execute I-918B forms or register as a “certifying official” authorized to sign the form on behalf of law enforcement agencies.  (The North Carolina Commission is one of 10 conduct commissions that issue advisory opinions to judges as well as investigate complaints against judges; in most states, the two roles are separate.)

The Commission reasoned that certification by a judge as to the potential “helpfulness” of a witness to the prosecution of a criminal matter violates the code of judicial conduct prohibition on a judge providing voluntary character testimony. The Commission concluded that, “a judge should not make personal recommendations to a federal agency predicting how useful a victim or witness might or might not be to a future prosecution. Such assessments are, in essence, the endorsement of the victim’s honesty, reliability, potential for cooperation and other character traits.”

The Commission also found that “the form clearly solicits information more appropriately provided by law enforcement or prosecutors,” noting a judge “is responsible for the adjudication, not the prosecution, of criminal matters” and “is not a representative of the prosecutorial team and should not collude with law enforcement or prosecutors in evaluating the helpfulness of potential witnesses in a case.” The opinion also noted:

A judge’s determination as to the credibility of victims should be formed through the hearing and trial process, and not be determined prior to adjudication. Such active involvement in securing witnesses for the prosecution and predetermining their helpfulness puts the judge in an inappropriate role that could reasonably suggest bias, or the appearance of bias, on the part of the judge in potential violation of Canon 2A and Canon 3 which require a judge to act to promote public confidence in the impartiality of his or her office.