Recusing the Fact-Finder Judge: An Argument for Restricting the "Extra-Judicial Source" Test

By Phillips, Joe; Lee, Se-In | Judicature, July/August 2011 | Go to article overview

Recusing the Fact-Finder Judge: An Argument for Restricting the "Extra-Judicial Source" Test


Phillips, Joe, Lee, Se-In, Judicature


The inflexible application of the "extrajudicial source" test to the fact-finder judge imperils public faith in the impartial decision maker - the heart of due process.

Should the standard for récusai differ when the judge is a factfinder instead of merely presiding over a jury trial? Specifically, should a judge be disqualified from reassessing factual and credibility issues that he has previously decided? The "factfinder judge" is a situation largely ignored in debates over récusai standards. Section 455 (a) of Tide 28 seems to provide one yardstick for determining disqualification in this situation; the Supreme Court and many lower courts, another.

Section 455 (a) safeguards the federal judiciary's public image by requiring a judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned (emphasis added)," It is an objective standard (the judge's actual bias is not controlling), and it is determined from the perspective of a reasonable lay observer. J A layman likely would doubt the impartiality of a fact-finder who has previously decided factual and credibility issues that are, once again, before him. This doubt is understandable, particularly because laymen, as the Supreme Court has warned, "are often all too willing to indulge suspicions and doubts concerning the integrity of judges."2 This doubt is consistent with the ABA's Code of Judicial Conduct, which defines "impartiality" as "maintenance of an open mind in considering issues that may come before a judge."3

The current standard

Yet, motions to recuse this judge will rarely succeed because the Supreme Court, in Liieky v. U.S.,1 engrafted the "ex trajudi cial source" test onto § 455 (a) .Judicial opinions based on facts introduced or events occurring, during the current or a prior court proceeding, do not disqualify the judge unless he displays "a deepseated favoritism or antagonism that would make fair judgment impossible." Only if the source of bias is extrajudicial - from outside the courtroom - does § 455 (a) apply as written. A leading treatise describes Liteky's sweeping effect: "It is now generally agreed that ... the rulings a judge renders in the same or a related case will almost never support an inference ... of judicial bias .... The rule ... applies without regard to the subject matter of the rulings, the type of case in which they were rendered, or whether the rulings were of a legal, factual, or evidentiary nature."6

While perhaps logical and fair to apply this standard to a presiding judge, the indiscriminate application of the "extra-judicial source" test to the fact-finder judge undermines the appearance of due process. Litfky sets an almost unreachable measurement for recusing a judge though he is repetitively deciding the same key factual and credibility issues in different proceedings. Liieky's requirement of "deep-seated favoritism or antagonism" is ill-suited to evaluating this judge who is not harboring favoritism or antagonism in the traditional sense but has an apparent closed or nearly-closed mind borne of earlier, presumably sincere, deliberations. The Liieky majority's example of "bias" was the following statement by the district judge in a case involving GermanAmerican defendants: "One must have a ver)' judicial mind, indeed, not [to be] prejudiced against the German Americans" because their "hearts are reeking with disloyal ty.'rfi This is not the type of predisposition held by the fact-finder judge who has previously decided the case's (actual and credibility issues. Nonetheless, that judge appears partial to the lay observer.

Judges undertake a fact-finder role in several situations, including matters involving equity, admiralty, patents, probable cause for a warrant, and the Federal Tort Claims Act. Exemplifying an FTCA scenario is Andrade, et. al. v. United States,7 one of the most famous American cases involving law enforcement's use efforce. …

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Recusing the Fact-Finder Judge: An Argument for Restricting the "Extra-Judicial Source" Test
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