About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

24 Advocate 1 (1981)

handle is hein.barjournals/adisb0024 and id is 1 raw text is: Vol. 24, No. 1             Boise, Idaho              January, 1981

By Judge Alan M. Schwartzman
Fourth Judicial District
As a general guide. I feel a trial judge should
recuse himself whenever he or she has any
doubt as to his ability to preside impartially
over a case; or, just as importantly, whenever
he believes his impartiality can reasonably be
questioned. The appearance of bias or preju-
dice can be just as damaging to public confi-
dence in the administration of justice as would
be the actual presence of bias or prejudice.
This latter guideline presents a more diffi-
cult and subtle evaluation on the part of a trial
judge, especially where his connection with
the case is remote or tenuous. However, there
should be a concerned sensitivity in ascer-
taining whether the public im!oression will
give rise to unfavorable appearance of impar-
tially, even though the judge is convinced of
his own lack of prejudice.
On the other hand, a judge should avoid
withdrawing from a case merely because a
charge of bi as has been made. A demand for
recusation can be used as an indirect means
for judge-shopping and, serve as an excuse for
withdrawing from particularly difficult or
unpleasant cases. Indeed, there is as much
an obligation upon a judge not to recuse him-
self when there is no occasion as there is for
him to do so when there is.
Where a charge of bias (or its appearance
to the public perception) arises, I would first
analyze it in terms of my own feelings of
actual impartiality. A particularly troublesome
area is that of domestic relations, where the
case, once decided, may, like the fabled
Phoenix, again arise from Its own ashes to
haunt the courthouse corridors in perpetuity
(or at least until the children reach majority).
Public Policy
As a matter of sound public policy and judi-
cial administration, merely because a judge
has lived with a case over time and developed
a great deal of factual background knowledge
about the parties and their situation - this
alone should be insufficient to invite recusal.
A judge is not to be faulted as biased or
prejudiced merely because he has previously
rejected similar or related claims in the past. It
is only when previously held opinions, devel.
oped in a judicial capacity, crystallize into a
(Continued on Page 2)


By Merlyn W. Clark, Chairman
This is the fourth in a series of articles
intended to keep the members of the Bar in-
formed of the deliberations and actions of the
Evidence Committee. The following Is the
third and final abbreviated article summariz-
ing the minutes of the Committee's third
meeting. It deals with Article IV and Rules 608
and 609: Article III was passed over to another
The Committee Cu mUdred Article 4, Rules
404, 405. and Rule 608 and 609. all of which
deal with character evidence and are related
rules. Consequently they were discussed to-
gether. With only a few exceptions the Uniform
and Federal rules are identical. Rules 404 and
405 deal with relevancy and Rules 608 and 609
deal with witnesses. Rule 404 limits the use of
character evidence and Rule 405 provides the
method of proving character. Rule 608 pro-
vides for evidence as opposed to the specific
instances of conduct, and Rule 609 deals with
impeachment by e'idence of conviction of a
Colorado adopted the rules identical to
Federal and Uniform Rules 404, 405 and 608,
but did not adopt Rule 609 or any equivalent
Idaho Code §18-6105 entitled Evidence of
Previous Sexual Conduct of Prosecuting Wit-
ness provides that such evidence shall not
be admitted as provided in the statute. It re-
quires the defendant to make -n application
to the court upon which appll;ation the court
shall conduct a hearing out of the presence of
the jury as to the relevancy of such evidence,
Effective January 1, 1981, the Su-
preme Court has amended its rules to
increase the maximum civil jurisdiction
(damages or property) of Attorney
Magistrates from $5,000 to $10,000. A
copy of the Court's Order amending
Civil Rule 82(c)(2) is published at page
2 in this issue of The Advocate.

and shall limit the questioning and control the
admission and exclusion of such evidence.
Nothing In the section is to limit the right of
either the state or the accused to Impeach
credibility by the showing of prior felony con-
I.R.C.P. 43(bX6) entitled Impeachment by
Adverse Party provides that a witness may
be impeached by the party against whom he
was called by contradictory evidence, or by
evidence that his general reputation for truth,
honesty or integrity is bad, but not be evi-
dence of particular wrongful acts, except that
upon the finding by the court in a hearing out-
side of the presence of the jury that a prior
conviction of a felony of a witness is relevant
to his credibility, it then may be shown by the
examination of the witness, or the record of
judgment, that he has been convicted of a
felony and the nature of the felony.
I.R.C.P. 43(bX9) entitled Evidence of Good
Character, provides that evidenne of a good
character of a party is not admissible in a civil
action, nor of a witness in any action, until the
character of such party or witness has been
impeached, or unless the Issue involves his
The Committee analyzed these rules and
the Idaho law involved in offering character
evidence based upon the recognition that
there are two types of character evidence: (1)
reputation or opinion testimony regarding a
person's character, and (2) evidence of spe-
cific instances of an Individual's character
(bad habits) which are probative of that Indi.
vidual's character.
Recognizing that the admissibility of char-
acter evidence In a particular situation will de.
pend upon which of these 2 types of character
evidence Is being offered, the Committee fur.
ther evaluated each type of evidence accord.
Ing to the purpose for which it would be offered:
(1) to establish an essential element of a
claim, defense or charge (e.g., proof of plain-
tilff's character as proof of damage in a libel
action); (2) to show that an individual acted in
conformity with his character In the particular
transactions or event which is the subject
matter of the suit or prosecution; (3) to prove a
fact of independent significance, i.e., to prove
(Continued on Page 13)

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Already a HeinOnline Subscriber?

profiles profiles most