Prosecutors Desk 6-2-14

There are times that one of the parties to a criminal case, either the state or the defendant, becomes of the opinion that the party cannot get a fair trial before the judge hearing the case.  There is a way to get the case assigned to another judge.  The method is to file an affidavit of prejudice, which is merely a statement that the party files with the court stating that the party is of the opinion that the party cannot get a fair trial before the court.

There are two kinds affidavits that may be filed.  One, and the much more common,  is to file an affidavit of prejudice at the start of the case and before the court has made any discretionary decisions in the case.  A discretionary decision is one that requires the court to make a judgment call.   There are deadlines that must be met when filing such an affidavit, usually this is called an “affidavit of right,” meaning the party has the right to file the affidavit and does not have to present evidence to support the opinion.  This type of affidavit may be filed one time in a case.

The other way is to file an affidavit stating that the party believes the court has actual prejudice and should step away from the case.  This cannot be just on the basis that the court has made a decision that the party does not like or thinks is wrong.  The party filing the affidavit of actual prejudice must present convincing evidence that the prejudice exists and the party has, or is liable to be, prejudiced by the decisions the court will make.  More than one affidavit of actual prejudice may be filed.

Affidavits of actual prejudice are very rare because one on the Standards of Judicial Conduct requires the court to step away from any case where the court is prejudiced.  Most judges are very careful to avoid even the appearance of impropriety and will step away from any case where there is even the hint of a personal interest or prejudice for or against one of the parties.  This is one of the procedural ways that the justice system attempts to make sure that the defendant and the state receive a fair trial.

There are people who criticize the justice system and are anxious and happy to point out flaws in the system. They go into great detail about supposed problems and the imperfections and usually have nothing to offer to correct the problems.  I agree the system is not perfect. Neither are the persons who participate in the system, but the rules that exist are there for a reason and they form the framework upon which people who are trying do the right thing can make the system work to hold accountable those who need to be and to protect those who need protection.

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