Motion to Disqualify Judge – CPC 170.6
Would you like a different judge to hear your criminal case? There are ways to disqualify the judge and obtain a different judge to hear your case. You can disqualify your judge if you do it early and correctly.
A quick and easy disqualification can be obtained by filing a motion to disqualify the judge under CPC 170.6. The court must then consider the motion (which can also be done as a motion made in open court, orally). If this is done correctly, the disqualification can often be automatic and immediate.
CPC 170.6 provides that a judge must disqualify himself/herself upon a timely motion made by any party or attorney, as long as there is a sworn statement under oath that the party or attorney believes that the judge is biased against the party or attorney. This challenge is called a “pre-emptory challenge”. Section 170.6 also provides for disqualification without any evidence
of actual bias.
Once this motion has been filed, together with a statement under penalty of perjury, or an oral statement under oath, stating that the moving party or attorney believes that he/she will not have a fair and impartial trial or hearing, the judge will usually have no choice by to disqualify him/herself.
This pre-emptory challenge right is automatic. A belief that is in good faith of the bias of the judge is sufficient enough to ensure that the judge will no longer be able to hear your case.
Again, the motion must be made in a timely fashion, which normally means at the initial hearing that the judge has been assigned to your case. The motion must be made at the first opportunity. This motion cannot be made after you have allowed the judge to hold hearings in
your case, and thus, you are only allowed to use this challenge once per case.
It is in your best interest to have this motion prepared and ready before going to court. Once you are in court, if you then decide to disqualify the judge when your case is called, you already have the motion ready and you can file it immediately. However, you can make the motion orally if need be.
It is always best to protect your interests if you feel a judge is biased.
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