Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Bias or prejudice either inherent in the structure of a trial system or imposed by external events can infringe a person’s right to a fair trial. Thus, as in the civil context,1 procedural due process requires criminal cases to be overseen by an unbiased judge and decided by an impartial jury.

For instance, in Tumey v. Ohio, the Supreme Court held that it violated due process for a judge to receive compensation out of fines imposed on convicted defendants, and no compensation (beyond his salary) “if he does not convict those who are brought before him.” 2 In other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify the judge from citing and sentencing the contemnors.3

The Court has also found due process violations when a biased or otherwise partial juror participated in a criminal trial, although there is no presumption that all jurors with a potential bias are in fact prejudiced.4 Public hostility toward a defendant that intimidates a jury is a classic due process violation.5 More recently, concern with the impact of prejudicial publicity upon jurors and potential jurors has caused the Court to instruct trial courts that they should be vigilant to guard against such prejudice and to curb both the publicity and the jury’s exposure to it.6 For instance, the Supreme Court has raised concerns about the impact on a jury of televising trials, though ultimately the Court has held that the Constitution does not altogether preclude televising state criminal trials.7

The way a criminal defendant appears in court may also raise due process concerns about jury impartiality. The Court has held that it violates due process when the accused is compelled to stand trial before a jury while dressed in identifiable prison clothes, because it may impair the presumption of innocence in the minds of the jurors.8 Likewise, Court has held that the use of visible physical restraints, such as shackles, leg irons, or belly chains, in front of a jury, raises due process concerns. In Deck v. Missouri, the Court noted a rule dating back to British common law against bringing a defendant to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.” 9 The Court found that the use of visible restraints during the guilt phase of a trial undermines the presumption of innocence, limits the ability of a defendant to consult with counsel, and “affronts the dignity and decorum of judicial proceedings.” 10 The Court in Deck disapproved of the routine use of visible restraints when a defendant has already been found guilty and a jury is considering the application of the death penalty. The Court explained that such restraints can be used only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it.11

Footnotes

1

See Amdt14.S1.5.4.5 Impartial Decision Maker.

2

273 U.S. 510, 520 (1927). See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61 (1928). Similarly, in Rippo v. Baker, the Supreme Court vacated the Nevada Supreme Court’s denial of a convicted petitioner’s application for post-conviction relief based on the trial judge’s failure to recuse himself. 137 S. Ct. 905 (2017). During Rippo’s trial, the trial judge was the target of a federal bribery probe by the same district attorney’s office that was prosecuting Rippo. Rippo moved for the judge’s disqualification under the Fourteenth Amendment’s Due Process Clause, arguing the “judge could not impartially adjudicate a case in which one of the parties was criminally investigating him.” Id. at 906. After the judge was indicted on federal charges, a different judge subsequently assigned to the case denied Rippo’s motion for a new trial. In vacating the Nevada Supreme Court’s decision, the Supreme Court noted that “[u]nder our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘ha[s] no actual bias.’ Recusal is required when, objectively speaking, the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.” Id. at 907 (quoting Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 825 (1986); Withrow v. Larkin, 421 U.S. 35 (1975)). Bias or prejudice of an appellate judge can also deprive a litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813 (1986) (failure of state supreme court judge with pecuniary interest—a pending suit on an indistinguishable claim—to recuse).

3

Mayberry v. Pennsylvania, 400 U.S. 455, 464 (1971) ( “it is generally wise where the marks of unseemly conduct have left personal stings [for a judge] to ask a fellow judge to take his place” ); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where “marked personal feelings were present on both sides,” a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) ( “We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to authority.” ). In the context of alleged contempt before a judge acting as a one-man grand jury, the Court reversed criminal contempt convictions, saying: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955).

4

Ordinarily, the proper avenue of relief is a hearing at which the juror may be questioned and the defense afforded an opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209 (1982) (juror had job application pending with prosecutor’s office during trial). See also Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting juror); Dennis v. United States, 339 U.S. 162, 167–72 (1950) (government employees on jury). But, a trial judge’s refusal to question potential jurors about the contents of news reports to which they had been exposed did not violate the defendant’s right to due process, it being sufficient that the judge on voir dire asked the jurors whether they could put aside what they had heard about the case, listen to the evidence with an open mind, and render an impartial verdict. Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s prior criminal record, if the jury has been given a sentencing function to increase the sentence that would otherwise be given under a recidivist statute. Spencer v. Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality about capital punishment, see discussion under Sixth Amendment, supra.

5

Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 (1923).

6

Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421 U.S. 794 (1975).

7

Initially, the Court struck down televising of certain trials on the grounds that the harmful potential effect on the jurors was substantial, the testimony presented at trial may be distorted by the multifaceted influence of television upon the conduct of witnesses, the judge’s ability to preside over the trial and guarantee fairness is considerably encumbered to the possible detriment of fairness, and the defendant is likely to be harassed by his television exposure. Estes v. Texas, 381 U.S. 532 (1965). Subsequently, however, in part because of improvements in technology that caused much less disruption of the trial process and in part because of the lack of empirical data showing that the mere presence of the broadcast media in the courtroom necessarily has an adverse effect on the process, the Court has held that due process does not entirely preclude the televising of state criminal trials. Chandler v. Florida, 449 U.S. 560 (1981).

8

Estelle v. Williams, 425 U.S. 501 (1976). The convicted defendant was denied habeas relief, however, because of failure to object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986) (presence in courtroom of uniformed state troopers serving as security guards was not the same sort of inherently prejudicial situation); Carey v. Musladin, 549 U.S. 70 (2006) (effect on defendant’s fair-trial rights of private actors’ courtroom conduct—in this case, members of victim’s family wearing buttons with the victim’s photograph—has never been addressed by the Supreme Court and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief).

9

544 U.S. 622, 626 (2005). In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in dictum, that “no person should be tried while shackled and gagged except as a last resort.”

10

Id. at 630, 631 (internal quotation marks omitted).

11

Id. at 633.