Can I Request a New Judge If They Talked Privately With the Prosecutor?
By Amanda Bynum, Criminal Defense Attorney | Tucson, Ariz
Facing criminal charges is already stressful enough. But what if you discover your judge has had a private, off-the-record conversation with the prosecutor about your case?
That situation may be more than just uncomfortable — it could be grounds for a motion to change judge for causeunder Rule 10.1 of the Arizona Rules of Criminal Procedure. As a criminal defense attorney practicing in Pima County and throughout Southern Arizona, I believe transparency and impartiality are essential to justice. Let’s unpack what happens when that fairness is compromised, and what legal remedies exist to restore it.
What Is an “Ex Parte” Communication?
In criminal court, the term "ex parte" refers to communication with the judge by one party without the other party present. These communications are highly restricted in criminal matters because they violate the principle of fundamental fairness.
Ex parte communications often happen informally and may be presented as harmless — for example, a prosecutor chatting with the judge about case scheduling. But when the topic shifts into substantive discussions about legal issues, defenses, evidence, or the merits of the case, this becomes a serious due process issue.
In Arizona, judges are bound by the Arizona Code of Judicial Conduct, specifically Canon 2.9(A), which prohibits judges from initiating, permitting, or considering ex parte communications concerning a pending or impending matter, except in narrow circumstances, such as:
Administrative matters that don’t deal with substantive issues
Emergencies where communication with both parties isn’t feasible (with full disclosure later)
Certain judicial duties like issuing warrants or emergency orders
If a judge has a private conversation with the prosecutor about your defense, a legal strategy, or how a ruling might affect your case — and you or your attorney were not included — that could compromise your right to a neutral and detached magistrate, a core principle under both the Arizona Constitution and the U.S. Constitution’s Due Process Clause.
Rule 10.1 – Changing a Judge for Cause
Arizona Rule of Criminal Procedure 10.1 provides a mechanism to remove a judge from a case for cause, meaning when there's a legitimate reason to question the judge’s impartiality. This is not the same as a peremptory challenge (Rule 10.2), which doesn’t require a reason and can be used once per side per case.
When can a Rule 10.1 motion be filed?
A motion to change judge for cause must be supported by an affidavit detailing the grounds for disqualification and filed:
Within 10 days of discovering the cause, and
Before trial begins (unless the cause wasn’t discoverable earlier)
Examples of “cause” include:
Personal bias or prejudice against the defendant or defense counsel
Undisclosed relationships with parties or attorneys
Improper ex parte communications
Public comments about the case
Prior involvement in the matter in a different capacity (e.g., as prosecutor or investigator)
If you discover ex parte contact between the judge and the prosecutor about a key issue in your case, this may meet the threshold for cause under Rule 10.1 — especially if the content of the discussion could affect rulings, motions, or sentencing.
Legal Principles at Stake: Due Process and Judicial Ethics
Two core legal doctrines are implicated by ex parte judicial conduct:
1. Due Process Under the 5th and 14th Amendments
The U.S. Supreme Court has long recognized the importance of judicial neutrality. In In re Murchison, 349 U.S. 133 (1955), the Court explained:
"A fair trial in a fair tribunal is a basic requirement of due process."
When a judge acts — or even appears to act — in concert with the prosecution, that fairness is compromised. It doesn’t require actual bias — the appearance of bias alone may be sufficient to warrant disqualification. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
2. Canon 1 & 2 of the Arizona Code of Judicial Conduct
Canon 1: Judges must uphold and promote the independence, integrity, and impartiality of the judiciary.
Canon 2: Judges must avoid both actual impropriety and the appearance of impropriety.
Ex parte communications often violate both canons. Even if a judge claims the conversation was harmless, the mere appearance of favoritism can undermine public confidence and trigger valid concerns about fairness.
What Should Be Included in a Rule 10.1 Motion?
A proper Rule 10.1 motion should:
Be timely (filed within 10 days of discovering the issue)
Include a detailed affidavit explaining the nature of the ex parte communication and how it affects the judge’s neutrality
Provide evidence, where possible — such as:
Court transcripts
Witness declarations
Email records or notes
Comments made on the record referencing the off-the-record communication
The motion must be filed with the court and served on all parties. If the judge agrees that there’s merit, they may recuse themselves. If not, the presiding judge will typically assign a different judge to decide the motion.
What if the Motion is Denied?
If the motion is denied and the judge remains on the case, defense counsel may consider:
Filing a special action in the Arizona Court of Appeals
Preserving the issue for appeal, especially if the judge later rules adversely on contested issues discussed ex parte
A Realistic Example
Let’s say you’re charged with a felony in Pima County Superior Court. Your attorney files a motion to suppress evidence based on an illegal search. Before the hearing, you discover that the judge spoke with the prosecutor about the search — off the record and without notifying your attorney.
Even if the judge doesn’t rule against you, the fact that they had that conversation creates an appearance of partiality. The prosecutor may have shared their legal theories, credibility concerns about witnesses, or case strategy — all without your side having a chance to respond.
In that situation, filing a Rule 10.1 motion for cause would be not only appropriate, but essential to protect your rights.
Why Judicial Impartiality Matters in Arizona Courts
In Southern Arizona courts like Pima County Justice Court, Tucson City Court, and Marana Municipal Court, I’ve seen firsthand how much discretion judges hold over:
Release conditions
Evidentiary rulings
Motions to suppress
Sentencing
Probation vs. jail time
If a judge is swayed — even subconsciously — by one-sided conversations with the prosecution, that can ripple through the entire case. For example, I’ve had misdemeanor clients facing harsh pretrial conditions, only to learn the judge had a "sidebar" conversation about risk assessments or prior contacts not disclosed to the defense.
These dynamics happen behind the scenes — and most defendants never even know. That’s why having a vigilant and experienced defense attorney matters.
Why You Need an Attorney Who’s Not Afraid to Speak Up
Many lawyers are hesitant to file Rule 10.1 motions. They worry about “offending” the judge or disrupting the flow of a case. But when your rights are on the line — and your freedom is at stake — your attorney has a duty to challenge judicial misconduct or bias.
At AJB Law Firm, I don’t back down when fairness is compromised. I have filed these motions when necessary and know how to support them with solid evidence, persuasive argument, and strategic timing.
Whether you’re facing a DUI, drug charges, or a more serious felony, I will make sure your judge follows the rules — or I’ll hold them accountable.
Don’t Wait: Rule 10.1 Motions Are Time-Sensitive
You only have 10 days from discovering the improper communication to file your motion for cause. After that, the court may consider the issue waived unless the conduct was intentionally concealed.
If you believe something improper happened in your case — or you heard something that didn’t sit right — don’t ignore it. Talk to your attorney immediately and consider whether a Rule 10.1 motion is the right step.
Final Thoughts: Trust in the System Requires Transparency
Arizona courts are supposed to be neutral arenas where both sides present their case on equal footing. But if the judge is secretly talking to the prosecutor about legal issues, that playing field tilts — and justice suffers.
Filing a Rule 10.1 motion isn’t about disrespecting the court. It’s about protecting your constitutional rights and ensuring that justice is done in the open, with both parties present, and on the record.
If you're facing criminal charges in Tucson, Marana, Green Valley, or anywhere in Pima County, and you’re concerned about how your case is being handled — I’m here to help.
Amanda J. Bynum
AJB Law Firm, PLLC
Tucson, Arizona | Serving Pima County and Surrounding Areas
