| The defendant is entitled to a fair criminal trial. In order for the defendant to be afforded a fair trial, a judge must behave in a proper manner. If the judge engages in improper behavior the defendant may request that the judge recuse himself. Recusal is when the judge is disqualified on the request of either party or on the judge's own volition. If either the prosecutor or defense counsel has requested the recusal or disqualification of the judge, the request must be made at the earliest possible moment after either side has obtained knowledge or evidence that the judge will not be impartial during the criminal proceedings.
Actual Bias or Prejudice Against a Defendant
The judge is required to recuse himself if the defendant or prosecutor has filed a timely affidavit showing that the judge has a personal bias or prejudice against the party filing the affidavit or in favor of the opposing party. States vary on the requirements on the information needed to be included in the affidavit. With respect to federal courts the requirements for the contents of the affidavit are as follows:
- The affidavit must set forth specific reasons that the party believes that the judge has a bias or prejudice.
- The affidavit must be filed 10 days before the beginning of the term of the proceedings or in less than 10 days if good cause can be shown for the late filing.
- The affidavit must be accompanied by a certificate that the attorney filing the affidavit filed it in good faith.
Partiality
The judge may also be required to disqualify himself if he appears to be partial to one side or the other. Although states vary on the standards required for disqualification, the federal standard requiring disqualification is whether a reasonable person knowing all of the facts would find that the judge's impartiality could be questioned. A showing of actual bias or prejudice is not required.
Judge has an Interest in the Case
The judge is required to disqualify himself or herself from hearing a case if he or she has any interest in the case. Disqualification is also required if the judge's spouse has an interest in the case. The interest in the case is usually required to be a direct interest. Often times the interest is of a financial nature.
Hostility Toward the Attorneys
If the judge has a tremendous amount of hostility toward either the prosecutor or defense attorney, recusal may be required. The amount of hostility must be sufficient to warrant recusal. If the judge denies a motion and criticizes the prosecution for filing the motion, sufficient grounds for requesting disqualification of the judge do not exist. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |