Litigation

Thoughts on Psychology and Recusal Rules

By Peter Hardin

The Supreme Court’s landmark Caperton v. Massey decision has led some states to consider new rules for disqualification, or recusal, of judges who might have a bias or an appearance of bias in hearing a case. Now two experts are drawing on research in psychology to offer tips for states that are weighing new recusal rules.

In an article for Monitor on Psychology, published by the American Psychological Association, Drs. Jennifer K. Robennolt and Matthew Taksin address the question captured in its headline, “Can judges determine their own impartiality?” In order for justice truly to be blind, litigants must be ensured unbiased legal proceedings, they note.

It is indeed hard for a judge to assess his own impartiality, the authors write, before they explore the intriguing issues that Caperton raises for psychologists. For those who defend fair and impartial courts, their most valuable guidance may lie in the article’s tips on exploring new recusal rules:

• “As states contemplate revisions to their judicial codes, they might consider using objective triggers for recusal and avoid leaving the recusal decision solely to the discretion of the challenged judge.
• “States might also consider rules that make it easier for judges to recuse themselves by framing the recusal decision in terms of the appearance of impropriety, rather than asking a challenged judge to evaluate his or her actual biases.”

You can read more in Gavel Grab about states adopting new disqualification rules, and the controversies that have arisen. And you can learn more about Caperton and its importance by clicking here for related Gavel Grab posts.

Full post as published by The Gavel on February 09, 2010 (boomark / email).