Your Right to Ask For a Different Judge

The right of an accused person to substitute out the judge set to hear their case is a hot-button topic in today’s news cycle. Details from the Manhattan criminal trial of President Donald J. Trump have led many to call for the substitution of presiding Judge Juan Merchan due to assumed bias. Many have said that Judge Merchan is biased against the former president and ought to step down. Judge Merchan has refused to do so. 

If you are facing criminal charges in Wisconsin and feel your judge is biased against you, you might wonder whether you also have the right to substitute your judge. Those charged with a crime in Wisconsin can ask, once, for a new judge. Although this is described as a “right,” there are limitations on when and how often it can be used.

The Right to One Judge Substitution

Wisconsin Statute 971.20 states that in all trial-level criminal actions, you have the right to one substitution of the judge hearing your case. How you exercise this right and the time limitations for doing so depend on which stage your case has reached when you decide to ask for a new judge.

Before Preliminary Hearing

If you have not yet had a preliminary hearing in your felony case, you can file a written request with the clerk asking the court to substitute the judge assigned to hear your preliminary hearing. This request must be filed at least five days before your scheduled preliminary hearing unless the court permits you to file it later. 

Note that substituting the judge at your preliminary hearing counts as asking to substitute a judge in your case. You will not have any further right to substitute your trial judge. So it’s usually better not to use it for this limited purpose.

Before Arraignment

Suppose that you are uncomfortable with the trial judge assigned to hear your case. As long as you have not yet asked to substitute the assigned judge, you can file a written motion with the clerk and ask for a new judge to be appointed to preside over your trial. 

Your request must be made before you formally enter a plea to your charges and before the assigned judge has made any rulings on pretrial matters.

After the Appointment of a Newly Assigned Judge

Finally, if the originally assigned trial judge is replaced by a new judge, you may be able to substitute that new judge for a different one. If you have not exercised your right to substitute, you can make a written request within 15 days of being notified of the new judge’s appointment. 

If the new judge is assigned on the eve of trial, your time to substitute the judge is shortened considerably.

Exercising Your Right Demands Strategy

Because you have the right to substitute a judge in your case only once, you must carefully decide whether and when to use this right. You should also consider that the substitute judge may be no more favorably inclined toward you than the previous judge, and may be even less so. 

If you believe the judge assigned to your case will not treat you fairly, talk with an experienced Wisconsin criminal defense lawyer about your rights and options.

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