Right to Impartial Judge
The judge holds enormous power in both civil law and common law criminal justice systems. Because this power is disproportionately large compared to both the criminal defense lawyer and the prosecutor, a defendant has the right to trial by an impartial and unbiased judge.
In Tumey v. Ohio, the Supreme Court explained why it is important for judges to be impartial:
"[I]t certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct personal, substantial pecuniary interest in reaching a conclusion against him in his case"
A defendant may challenge a biased judge for cause. Generally, each state will promulgate rules laying out the exact grounds for a defendant's challenge of a judge for cause. If the matter requires a hearing, the hearing should be conducted by a second judge who has no interest in the outcome of the potential recusal.
A judge also has the responsibility to take affirmative action to remove the appearance of impropriety or bias. The judge should not rely on the defendant to raise the issue of impartiality.
Several states also permit a "peremptory challenge" without a showing of bias.
Article 14 of the International Covenant on Civil and Political Rights (ICCPR),1 provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” As a component of a fair trial, the Constitution, in Section 50 grants the defendant he right to have his case resolved by a court or another independent and impartial tribunal or body. Additionally, persons appointed to serve as judges must have a high moral character, integrity and impartiality Article 166 (2)(c).
If it comes to the attention of defense counsel that the judge or magistrate is not neutral, he/ she may make a motion for the judge or magistrate to recuse himself. Impartiality of a judge of magistrate may also form grounds for an appeal.
- Tumey v. Ohio, 273 U.S. 510 (1927)