THE ONE THING A JUDGE SHOULD NEVER SAY
During a felony sentencing or probation violation hearing (PVH), judges may warn defendants that a violation of probation can have serious ramifications, but the court should never promise, announce or otherwise imply that the court will send the defendant to prison if he/she violates conditions of their probation, or that the court has otherwise prejudged the proceedings. If such a statement is made and a reasonable examiner would question whether the judge could impartially conduct the proceedings, then at the request of the defendant, the judge would likely be disqualified from the probation violation hearing.
During a felony sentencing or PVH, there are many instances where the presiding judge could justifiably sentence the defendant to prison, but instead exercises judicial discretion to place or keep the defendant on probation. In the judge’s desire to impart upon defendants the seriousness of probation and the potential consequences of a violation, some of us may resort to slight exaggeration or hyperbole to make our point.
Therefore it’s important to remember:
- In a downward dispositional case (where a defendant gets probation instead of prison), never say: “If you come back on a probation violation, you are going to prison.”
- Likewise, in a probation violation hearing in which the defendant stays on probation instead of being sent to prison, never say: “If you violate probation one more time, I am going to send you to prison.”
KEY QUOTES (from State v. Finch, 865 N.W.2d 696 [Minn.2015]): A judge is disqualified “due to an appearance of partiality” if a “reasonable examiner, with full knowledge of the facts and circumstances, would question the judge’s impartiality.” In considering whether to revoke probation, district court judges “must take care that the decision to revoke is based on sound judgment and not just their will. Judges must remain impartial by not prejudging; they must maintain an open mind.”
Judge Alan Pendleton
10th Judicial District
For the complete text of Judge Pendleton’s tip, with citations, visit the Minnesota Judicial Training & Education Blog at www.pendletonupdates.com