Section 8.38 Disqualification With or Without Cause

• Library: Criminal Practice 2012 Supp

C. (§8.38) Disqualification With or Without Cause

In a criminal case, on proper filing, a defendant is entitled to one disqualification of the trial judge. Mere timely filing of the application for disqualification before trial requires that the judge be disqualified even if the judge is neither interested nor prejudiced. Rules 32.06, 32.07; State v. Vermillion, 486 S.W.2d 437 (Mo. 1972).

Judges may be disqualified on their own initiative, Rule 32.10, or by application of the defendant or prosecutor, Rules 32.06(a), 32.07(a). The right to disqualify the trial judge, however, is not unlimited. It is circumscribed by requirements regarding the:

· time of filing;

· notice;

· form of affidavit;

· limitation to one disqualification without cause; and

· judicial selection of the new judge.

Sections 545.660, 545.690, RSMo 2000; Rules 32.06–32.10; State ex rel. McNary v. Jones, 472 S.W.2d 637 (Mo. App. E.D. 1971).

The statutes, Rules, and caselaw limit the number of disqualifications. See § 545.650, RSMo 2000; Rule 32.09; State ex rel. Oswald v. Buford, 518 S.W.2d 690 (Mo. App. S.D. 1975). Neither the state nor any defendant is allowed more than one change of judge in any criminal proceeding—with two exceptions. First, a change of judge before the preliminary examination does not prevent the moving party from filing another application for a change of judge if the defendant is held to answer for the charge. Rule 32.09(a). Second, it is clear under the federal due process clause that...