Judge Criticized for Courtroom Behavior

The Bencher--November/December 2015

By Francis G.X. Pileggi, Esquire

The Michigan Supreme Court recently issued an opinion that describes courtroom behavior by a trial judge that warranted the reversal of a conviction. The case involved the conviction of a father for the death of his young child.

The Michigan Supreme Court determined that the trial judge's conduct deprived the defendant of a fair trial by piercing the veil of judicial impartiality. The court determined that the conduct of a judge pierces this veil and violates the constitutional guarantee of a fair trial when, "considering the totality of the circumstances, it is reasonably likely that the judge's conduct improperly influenced the jury by creating the appearance of advocacy or partiality against the party."

In this case, styled as People v. Stevens, the Michigan Supreme Court developed a five-part test for determining when the conduct of a trial judge pierced the veil of judicial impartiality. The five-part test includes: (1) nature of the judicial intervention; (2) tone and demeanor of the judge; (3) scope of the conduct in light of the trial's complexity; (4) whether the intervention was directed toward a particular party, so as to distinguish excessive but ultimately neutral questioning from biased judicial questioning; and (5) curative instructions at the close of a trial.

Application of the Standards to the Facts

Nature of Judicial Intervention

As applied to the facts of this case, Michigan's highest appellate court found that the trial judge undermined the testimony of the key expert witness for the defendant by suggesting that another witness offered contradictory testimony. The trial judge also contrasted the defense expert's opinion with the opinion of others and undermined the credibility of the defendant's expert. Specific examples were provided in the opinion of questioning by the trial judge that exceeded the bounds of permissive judicial conduct to the extent that it created an appearance of advocacy or partiality against the defendant.

Tone and Demeanor

This factor often dovetails with an analysis of the nature and type of judicial conduct. In this case, the trial judge's questioning of the expert for the defendant indicated antagonism and hostility. For example, in one instance the judge asked three questions in immediate succession without giving the witness the chance to respond. At other points, the trial judge displayed hostility towards defense counsel and also expressed his personal opinion, doubting the testimony of the defendant. Although the actual tone and demeanor may not be expressed in the trial transcript, it can be inferred from the judge's choice of words, and in this instance the Michigan Supreme Court concluded that the trial judge created an appearance of bias against the defendant.

Scope of the Conduct in Light of the Trial's Complexity

Although this case involved an eight-day murder trial involving testimony from several medical experts, the level of complexity of the issues did not warrant the extent of the judicial intervention that occurred. The supreme court determined that counsel for both parties developed the differing viewpoints of the experts in an understandable fashion and that the degree of intervention by the trial judge was not justified.

Direction of Intervention Towards a Particular Party

The record of the trial indicated that the questioning of the trial judge was directed against the defendant and in favor of the prosecution. For example, it appeared that almost all the questions were directed toward defense witnesses. Even when the judge did ask questions of a prosecution witness, the inquiry often appeared to be intended to weaken the defendant's case. In contrast to the aggressive and undermining judicial examination of the defendant and the defense witness, no witness of the other side was subjected to such hostile intervention, according to the supreme court's analysis.

Curative Instructions

Although the trial judge gave a curative instruction that his intervention was not meant to reflect a personal opinion, and that his comments and questions were not evidence, based on a totality of the circumstances, this element of the test did not outweigh the other factors considered.


Based on application of all the factors to the facts of this case, the Michigan Supreme Court determined that the record reflected that the trial judge exhibited bias against the defense throughout the trial and, therefore, the case was remanded for a new trial before a different judge.


The court used the expression "piercing the veil of judicial impartiality" to describe the net effect when the trial judge gave the appearance of advocacy or partiality against a party, thereby depriving a party of a fair trial. The five-part test applied is equally applicable to civil trials. The Michigan Supreme Court did not discuss how those standards would apply in a bench trial, but there is reason to believe that most of the standards would apply as well, to the extent that the statements of a trial judge may demonstrate a lack of impartiality.

Experienced practitioners know that it remains rare to have a sufficient basis in the record as overwhelming as the evidence was in this case to challenge a judge's courtroom behavior. More often than not, if there is any questionable conduct, it is not sufficient to rise to the level that supported the result in the case highlighted in this short column. Judges are not perfect and measurements of trial conduct lacks mathematical precision. Therefore, a formulaic approach is not realistic when evaluating whether subtle or not so subtle comments or other actions by a trial judge during trial indicate a trial judge's predilection for the position of one party or the other. Of course, in a bench trial when the judge also serves as the fact finder, there are different considerations beyond those that would otherwise be present in a jury trial.

Nonetheless, decisions similar to the Michigan Supreme Court ruling in this case are rare because trial judges seldom provide the basis for reversal that existed in this decision.

Francis G.X. Pileggi is the member-in-charge of the Wilmington, Delaware, office of Eckert Seamans Cherin & Mellott, LLC. His e-mail address is fpileggi@eckertseamans.com. He summarizes the key corporate and commercial decisions of Delaware Courts at www.delawarelitigation.com.

© 2015 Francis G.X. Pileggi, Esq. This article was originally published in the November/December 2015 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.