M E M O

TO: Joint Procedure Committee

FROM: Gerhard Raedeke

RE: Rule 5.1, N.D.R.Crim.P.; Preliminary Examination

Judge Wright has requested Committee consideration of an amendment specifying whether the judge who handles the preliminary hearing can also preside over the trial of the defendant. Seeletter from Judge Wright.

The United States Supreme Court has recognized there is no constitutional barrier against having the same judge preside over both the preliminary hearing and the trial, and if the trial is without a jury, against making the necessary determination of guilt or innocence. Withrow v. Larkin, 421 U.S. 35, 56, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975).

Judge disqualification decisions are addressed by the North Dakota Code of Judicial Conduct. See, e.g., Farm Credit Bank of St. Paul v. Brakke, 512 N.W.2d 718, 720 (N.D. 1994). Cannon 3(E)(1)(a) of the North Dakota Code of Judicial Conduct provides:

"E. Disqualification.

"(1) A judge shall disqualify himself or herself in a proceeding in which the judges impartiality might reasonably be questioned, including but not limited to instances where:

"(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings . . . ."

Cannon 3 is not meant to preclude participation of a judge who has obtained knowledge of a case through previous judicial participation in the case. E.g., U.S. Term Limits, Inc. v. Hill, 870 S.W.2d 383, 384 (Ark. 1994). "[A] judge is uniquely capable of distinguishing the issues and making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision." 46 Am.Jur.2d Judges 175 (1994). "The law presumes a judge is unbiased and not prejudiced." Brakke, 512 N.W.2d at 720, quoting Terry v. State, 602 N.E.2d 535, 540 (Ind. Ct. App. 1992).

A judge is not disqualified from presiding at the criminal trial on the merits by presiding at the preliminary or probable cause hearing. 48A C.J.S. Judges 113(b) (1981). "The fact that a judge conducts a preliminary examination which results in the prosecution of an accused does not, in the absence of a showing as to any personal bias or prejudice, disqualify the judge from presiding at the accused's trial . . . ." 46 Am.Jur. Judges175 (1994).

No inherent prejudice results by having the same judge preside over both the preliminary hearing and the trial. People v. DeJesus, 44 Cal.Rptr.2d 796, 803-06 (Cal. App.2d Dist. 1995). The determination of probable cause at the preliminary hearing is a limited function, and does not require the magistrate to resolve all possible conflicts of evidence and issues of credibility. Id.at 804. In DeJesus, the court explained:

"Since in binding a defendant over for trial, there has been a finding of only probable cause, there is no inherent reason to expect that the judge who found that probable cause is then automatically convinced of the defendant's guilt or automatically so prejudiced against the defendant that he or she cannot, or will not, give the defendant a fair trial."

Id. at 804.

The fact a magistrate learns a good deal of information about the case and/or the defendant before and during trial does not create an automatic or inherent tant upon the magistrate. Id., at 804. It is common for trial judges to learn a good deal of information about the case and/or the defendant before and during trial through pre-trial proceedings, motions in limine, and motions during trial. Id., at 804.

Likewise, a judge who issues a search warrant is not required to recuse himself or herself from presiding over a hearing to suppress evidence based on the invalidity of the warrant. Stokes v. State, 853 S.W.2d 227, 242 (Tex. App. 1993); State v. Poole, 472 N.W.2d 195, 197 (Minn. App. 1991); Heard v. State, 574 So.2d 873, 874-75 (Ala. App. 1990); Holloway v. State, 738 S.W.2d 796, 798 (Ark. 1987). Whether a trial judge should recuse himself from ruling on the validity of a search warrant he or she issued is a matter of individual conscience for the court. People v. McCann, 650 N.E.2d 853, 854 (1995).

Should North Dakota adopt a rule specifically addressing whether a judge can make a probable cause determination and then preside over a subsequent suppression hearing or trial? In Oklahoma, it is reversible error for the same judge to preside over both the preliminary hearing and the trial absent consent of the parties. Jordan v. State, 763 P.2d 130, 131 (Okla. 1988). Oklahoma has a statute which provides: "The judge who conducts the preliminary examination shall not try the case except with the consent of all the parties." 22 Okla.Stat. 576.