Bias or the Appearance of Bias - Ex. 2

Presiding over an increasingly contentious trial, Judge Stern wearily watches an attorney cross-examine an obviously hostile witness. As the witness, an African-American woman, complains for the fifth time that a question is unclear, the exasperated counsel shoots back at her: "Come on, honey, you didn’t just step out of a cotton patch. You know exactly what I’m asking you." Opposing counsel does not object.

Should Judge Stern take any action?

1. Yes, Judge Stern should admonish the attorney to avoid any racially discriminatory remarks in court and to apologize to the witness.

Judge Stern does not have to wait for an objection from the opposing counsel to act. In fact, the judge is ethically obligated to require lawyers to refrain from manifesting, by either words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, marital status, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. NMRA 21-300 (B) (6) and 21-300 (D) (2). The attorney should know better than to make such blatantly prejudiced comments as calling a female witness "honey," or referring disparagingly to her forebears’ state of involuntary servitude. A summary contempt citation against the attorney would not be excessive in these circumstances; an admonition and mandatory apology would be a minimally adequate response for the first such offense.

2. Yes, Judge Stern should hold counsel in contempt.

Judge Stern does not have to wait for an objection from the opposing counsel to act. In fact, the judge is ethically obligated to require lawyers to refrain from manifesting, by either words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, marital status, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. NMRA 21-300 (B) (6) and 21-300 (D) (2). The attorney should know better than to make such blatantly prejudiced comments as calling a female witness "honey," or referring disparagingly to her forebears’ state of involuntary servitude. A summary contempt citation against the attorney would not be excessive in these circumstances; an admonition and mandatory apology would be a minimally adequate response for the first such offense.

3. No, Judge Stern can do nothing because opposing counsel did not object.

Judge Stern does not have to wait for an objection from the opposing counsel to act. In fact, the judge is ethically obligated to require lawyers to refrain from manifesting, by either words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, marital status, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. NMRA 21-300 (B) (6) and 21-300 (D) (2). The attorney should know better than to make such blatantly prejudiced comments as calling a female witness "honey," or referring disparagingly to her forebears’ state of involuntary servitude. A summary contempt citation against the attorney would not be excessive in these circumstances; an admonition and mandatory apology would be a minimally adequate response for the first such offense.

4. No, because counsel’s conduct is a legitimate, if indelicate, attempt to get an evasive witness to testify.

Judge Stern does not have to wait for an objection from the opposing counsel to act. In fact, the judge is ethically obligated to require lawyers to refrain from manifesting, by either words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, marital status, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others. NMRA 21-300 (B) (6) and 21-300 (D) (2). The attorney should know better than to make such blatantly prejudiced comments as calling a female witness "honey," or referring disparagingly to her forebears’ state of involuntary servitude. A summary contempt citation against the attorney would not be excessive in these circumstances; an admonition and mandatory apology would be a minimally adequate response for the first such offense. Pick an exercise (below) or choose a new topic from the table of contents. Judge Bean and the Rabbit Lodge