SUMMARY

March 7, 2019

2019COA31

No. 16CA2229, People v. Roehrs — Judges — Extrajudicial 

Source Doctrine — Code of Judicial Conduct — Impartiality —

Disqualification

A division of the court of appeals considers whether a trial 

judge is disqualified from presiding over a criminal trial where she 

has witnessed part of the alleged offense occur in her courtroom. 

Examining the scope of the extrajudicial source doctrine, the 

division concludes that although knowledge gained in the course of 

a judge’s courtroom duties does not normally prevent a trial judge 

from presiding over subsequent, related proceedings, when a trial 

judge witnesses all or part of a crime in the courtroom, she has 

“personal knowledge of facts that are in dispute” within the 

meaning of Rule 2.11(A)(1) of the Colorado Code of Judicial 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
Conduct. Therefore, her impartiality may reasonably be questioned, 

raising an appearance of impropriety. 

In this case, because the trial judge failed to recuse herself 

from a criminal trial although she had witnessed part of the crime, 

the division reverses the judgment of conviction and remands with 

directions to grant the appellant a new trial before a different judge. 
COLORADO COURT OF APPEALS 2019COA31

Court of Appeals No. 16CA2229

Teller County District Court No. 15CR57

Honorable Theresa M. Cisneros, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dana Roehrs,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE RICHMAN

Navarro and Welling, JJ., concur

Announced March 7, 2019

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, 

for Defendant-Appellant
1

¶ 1 Defendant, Dana Roehrs, appeals the judgment of conviction 

entered on a jury verdict finding her guilty of retaliation against a 

witness and harassment. We reverse the judgment of conviction 

and remand with directions to grant Roehrs a new trial before a 

different judge.

I. Background

¶ 2 Roehrs was an interested party in a dependency and neglect 

hearing at which Judge Theresa M. Cisneros presided. At the 

hearing, Sergeant Couch, of the Teller County Sheriff’s Department,

testified concerning Roehrs’s presence at the scene of an

investigation that he was conducting. During Sergeant Couch’s 

testimony, Roehrs stood up, walked toward the witness stand, and 

said, “You’re a liar. I am going to have your job.” Judge Cisneros 

asked Roehrs to leave the courtroom, a directive that Roehrs 

followed. After testifying, Sergeant Couch left the courtroom. On 

his way to the clerk’s office, he passed Roehrs, who was sitting on a 

bench in the hallway. As he passed, he heard Roehrs say, “I’m 

going to fuck you up.” Sergeant Couch responded, “What did you 

say. . . . Are you threatening me?” Roehrs responded, “I’m going to 
2

sue you.” Sergeant Couch replied, “What did you say before that?” 

Roehrs answered, “I said, I am going to sue you.”

¶ 3 As a result of Roehrs’s behavior at the courthouse, the People

charged her with retaliation against a witness, harassment, and 

intimidating a witness. § 18-8-704(1)(a), C.R.S. 2018; § 18-8-706, 

C.R.S. 2018; § 18-9-111(1)(h), C.R.S. 2018.1 As the presiding judge 

at the dependency and neglect hearing, Judge Cisneros witnessed

some of the behavior and statements that were at issue in the later 

criminal trial on these charges. The substance, tone, and intent of 

Roehrs’s courtroom statements were disputed at trial, as was her 

location within the courtroom when she made the statements. 

Moreover, according to Sergeant Couch, Judge Cisneros later called 

him and the attorneys into her chambers to discuss what had 

happened outside the courtroom. During that meeting, Sergeant 

Couch told Judge Cisneros about the incident with Roehrs. 

Nonetheless, Judge Cisneros was assigned to preside over the trial 

on these criminal charges.

 

1 The People also charged Roehrs with harassment under section 

18-9-111(1)(b), C.R.S. 2018, but later dismissed that charge on the 

first day of trial. 
3

¶ 4 Before trial, Roehrs’s counsel moved to recuse2 Judge Cisneros 

on the grounds that because Judge Cisneros had personal 

knowledge of the facts to be tried and was a material witness to 

Roehrs’s conduct, there was an appearance of bias or prejudice. 

Judge Cisneros denied the motion, ruling that Roehrs had failed to 

prove bias or personal knowledge of disputed facts.

¶ 5 Judge Cisneros then presided over all proceedings in the 

district court. The jury found Roehrs guilty of retaliation against a 

witness and harassment. Roehrs was acquitted on the charge of 

intimidating a witness. Judge Cisneros sentenced Roehrs to four 

years in the custody of the Department of Corrections and five years 

of parole for the retaliation conviction, in addition to six months in

county jail for the harassment conviction, to run concurrently to 

her four-year prison sentence.

¶ 6 On appeal, Roehrs contends that the trial court erred in 

denying her motion to recuse and in imposing an unduly punitive 

 

2 We note that what Roehrs called a “motion to recuse” is also called 

a “motion to disqualify.” We will use “recusal” and “disqualification”

interchangeably here. C.J.C. 2.11 cmt. 1 (“The term ‘recusal’ is 

sometimes used interchangeably with the term ‘disqualification.’”).
4

sentence. Because we reverse and remand for a new trial based on 

the denial of the motion to recuse, we do not reach the sentencing 

issue.

II. Recusal

A. Applicable Law

¶ 7 We review a trial court’s ruling on a motion to disqualify a 

judge de novo. Smith v. Dist. Court, 629 P.2d 1055, 1056 (Colo. 

1981). When evaluating a motion to recuse, we must bear in mind

that a judge must not be tainted by bias or partiality. People v. 

Julien, 47 P.3d 1194, 1197 (Colo. 2002). A criminal defendant has 

a constitutional right to have an impartial judge sit on her case at 

all stages of the proceedings. People v. Hagos, 250 P.3d 596, 611 

(Colo. App. 2009). “A fair trial in a fair tribunal is a basic 

requirement of due process.” In re Murchison, 349 U.S. 133, 136 

(1955).

¶ 8 Also essential to our review are the statutes, rules, and codes 

that govern judicial conduct in Colorado. Smith v. Beckman, 683 

P.2d 1214, 1216 (Colo. App. 1984) (stating that when a judge 

considers the sufficiency of a motion for disqualification, she must 

consider the applicable statutes and rules of procedure as well as 
5

the Code of Judicial Conduct). These laws delineate three

fundamental limitations on a judge’s authority to preside over a 

criminal case where the judge has knowledge of the allegedly 

criminal actions. 

¶ 9 First, section 16-6-201(1)(d), C.R.S. 2018, and Colorado Rule 

of Criminal Procedure 21(b)(1)(IV) provide that a judge shall be 

disqualified when she is “in any way interested or prejudiced3 with 

respect to the case, the parties, or counsel.” 

¶ 10 Second, Canon 2 of the Colorado Code of Judicial Conduct

states that “[a] judge shall perform the duties of judicial office 

impartially, competently, and diligently.” Implementing that canon 

with respect to disqualification, Rule 2.11(A) states as follows:

A judge shall disqualify himself or herself in 

any proceeding in which the judge’s 

impartiality might reasonably be questioned, 

including but not limited to the following 

circumstances: 

 

3 Prejudice is “a leaning toward one side of a question involved, from 

other considerations than those belonging to it, or a bias in relation 

thereto which would in all probability interfere with fairness in 

judgment . . . .” Walker v. People, 126 Colo. 135, 146, 248 P.2d 

287, 294 (1952), superseded by rule on other grounds as stated in 

People in Interest of E.G., 2016 CO 19, ¶ 13 n.3.
6

(1) The judge has a personal bias or prejudice 

concerning a party or a party’s lawyer, or 

personal knowledge of facts that are in dispute 

in the proceeding.

C.J.C. 2.11(A) (emphasis added).4 Thus, Rule 2.11(A)(1) goes 

further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV) in 

explicitly including not only personal bias and prejudice as a basis 

for disqualification but also reasonable questions regarding 

partiality that arise when a judge has “personal knowledge of facts 

that are in dispute” in a proceeding. Accordingly, CRE 605 provides 

that the judge presiding at trial may not testify in that trial as a 

witness, even if no objection is made. 

¶ 11 Third, C.J.C. Rule 2.11(A)(2)(d) further states that a judge’s 

impartiality might reasonably be questioned if a judge knows that 

she is “likely to be a material witness in the proceeding.”

¶ 12 To determine whether recusal is warranted in light of these 

limitations, a judge must evaluate the sufficiency of the motion and 

 

4 Under the code, “impartiality” means the “absence of bias or 

prejudice in favor of, or against, particular parties or classes of 

parties, as well as maintenance of an open mind in considering 

issues that may come before a judge.” “Knowledge” means “actual 

knowledge of the fact in question. A person’s knowledge may be 

inferred from circumstances.” C.J.C., Terminology.
7

affidavits, accepting the facts stated therein as true. People v. 

Botham, 629 P.2d 589, 595 (Colo. 1981), superseded by rule on 

other grounds as stated in People v. Garner, 806 P.2d 366, 370

(Colo. 1991). A motion is legally sufficient when it states “facts from 

which it may reasonably be inferred that the judge has a bias or 

prejudice that will prevent him from dealing fairly with the 

defendant.” Id. The court must examine both the actuality and the 

appearance of fairness in light of the facts alleged. Id.; see Estep v. 

Hardeman, 705 P.2d 523, 526 (Colo. 1985) (“Thus, either actual 

prejudice on the part of the trial judge or its mere appearance can 

require the disqualification of that judge.”). Even if the judge is 

entirely convinced of her own impartiality, she must take care not 

to allow the justice system to be impugned by an appearance of 

partiality. Botham, 629 P.2d at 595. This concern must be given 

the “highest consideration in ruling on a motion for disqualification” 

to secure the confidence of litigants and maintain public respect for 

the courts. Smith, 683 P.2d at 1216.

B. Procedural Sufficiency of the Motion and Affidavit

¶ 13 As an initial matter, the People argue that Roehrs’s motion 

fails on procedural grounds. They correctly note that section 
8

16-6-201(3) and Crim. P. 21(b)(1) require that the motion be 

supported by affidavits from at least two credible persons who are 

not related to the defendant. Roehrs’s motion was supported by 

only one affidavit from her counsel.

¶ 14 The record does not contain any indication that the 

prosecution objected to the motion to recuse on this basis when it 

was filed. The motion was also renewed at a pretrial hearing, and 

the prosecution again made no objection on this basis. However, a 

party can ordinarily defend the judgment of the trial court on any 

ground supported by the record. People v. Eppens, 979 P.2d 14, 22

(Colo. 1999). Nonetheless, due to the unusual facts at issue in this

case and the resulting strong appearance of impropriety, we decline 

to dispose of this claim on procedural grounds for several reasons.

¶ 15 The judge was aware of the facts on which the motion was 

based and did not dispute those facts. See People v. Owens, 219 

P.3d 379, 385-86 (Colo. App. 2009) (reviewing the merits of a 

petition for rehearing in which a motion to recuse a judge was made 

without affidavits, because the judge was aware of the facts alleged 

and did not dispute them). Also, the affidavit was sufficient to 

verify the facts set forth in the motion. Botham, 629 P.2d at 596 
9

(stating that the affidavits need not contain all the essential facts 

but must verify those facts set forth in the motion). Moreover, had 

this technical deficiency been raised before the trial court, Roehrs 

may well have been able to cure it by submitting a second affidavit. 

Owens, 219 P.3d at 386 (noting that in the interests of judicial 

economy, review on the merits is warranted where a court 

anticipates that a defendant could immediately supplement the 

motion with the proper affidavits). Finally, the trial court addressed 

the merits of the motion and denied it only on the merits. We 

therefore also choose to address the merits.5 See People v. 

Fitzgibbons, 909 P.2d 1098, 1101 (Colo. 1996) (noting that the 

respondent filed no affidavit, but the hearing board reached the 

merits of the case and the court would do likewise); People in 

 

5 We note that because Roehrs submitted an affidavit in support of 

her motion, this case is distinguishable from other cases in which 

courts declined to review motions for disqualification due to more 

substantial procedural inadequacies. Altobella v. People, 161 Colo. 

177, 184, 420 P.2d 832, 835 (1966) (declining to consider a 

defendant’s second motion for change of judge where the defendant 

attempted, unsuccessfully, to incorporate previously filed affidavits 

by reference); People v. Taylor, 131 P.3d 1158, 1166-67 (Colo. App. 

2005) (holding that the trial court properly denied a defendant’s 

motion for recusal where no affidavits were attached to the motion). 
10

Interest of C.Y., 2018 COA 50, ¶¶ 11-12 (considering the merits of a 

motion to disqualify the judge, despite the lack of affidavits, where a 

judge solicited the motion and addressed it in open court on the 

merits).6

C. Merits of the Motion and Affidavit

¶ 16 In support of her motion, Roehrs alleged the following facts:

• The probable cause affidavit supporting the criminal 

charges stated that Roehrs stood up at the “defense”

table at the dependency and neglect hearing, accused 

Sergeant Couch of lying, and threatened to “have his 

job.” Roehrs began walking to the witness box, and 

Sergeant Couch stood up to defend himself if necessary. 

Judge Cisneros ordered Roehrs out of the courtroom.

• This series of events occurred in front of Judge Cisneros

and constituted more than half the contents of the 

probable cause affidavit.

 

6 Even had no motion been made, based upon her own knowledge 

of the factual basis for the motion, Judge Cisneros had a duty to 

recuse herself sua sponte if the statutes and rules governing 

disqualification precluded her from presiding over this case.

§ 16-6-201(2), C.R.S. 2018; Crim. P. 21(b)(2); C.J.C. 2.11(A).
11

• The probable cause affidavit also alleged that Roehrs told 

Sergeant Couch, “I’m going to fuck you up!”

• Judge Cisneros called the attorneys and Sergeant Couch 

into her chambers to discuss what had happened in the 

hallway outside the courtroom. During that discussion, 

Sergeant Couch told the judge about the incident with 

Roehrs.

¶ 17 Based on these statements, Roehrs argued that Judge 

Cisneros had personal knowledge of disputed facts and was a 

material witness to Roehrs’s conduct, creating an appearance of 

bias or prejudice with regard to “trial procedure, including but not 

limited to, [the] preliminary hearing, argument on [the] motions for 

judgment of acquittal, objections, defendant testimony and 

evidentiary rulings.” (In fact, at trial, Roehrs admitted only that she

had accused Sergeant Couch of lying on the stand and that she had 

threatened to sue him during their confrontation in the hallway. 

The remaining facts were disputed.)

¶ 18 Judge Cisneros found the motion insufficient on three

grounds. First, citing Comiskey v. District Court, 926 P.2d 539, 545 

(Colo. 1996), she noted that “information a judge learns in the 
12

performance of his or her judicial duties is generally not sufficient 

grounds for disqualification.” Because the behavior recounted in 

the supporting affidavit largely occurred during a hearing, Judge 

Cisneros found that any knowledge she gained during the hearing 

was not a proper basis for disqualification. Second, she noted that 

the motion was silent about what she, Sergeant Couch, and the 

attorneys had discussed in chambers, and, therefore, it did not 

establish that she had personal knowledge of disputed facts. Third, 

she found that none of the alleged facts established that she was 

biased or prejudiced against Roehrs.

¶ 19 We agree with Judge Cisneros’s conclusion that the facts 

alleged in the motion fail to establish actual bias or prejudice on her 

part, nor does the record demonstrate that the judge harbored 

actual bias or prejudice against Roehrs during any part of the trial.

It is clear that Judge Cisneros’s conduct was competent and 

professional.

¶ 20 With respect to the in-chambers meeting with Sergeant Couch 

and the attorneys, the record does not support the judge’s assertion 

that the motion was silent about what was discussed. The motion 

stated that in chambers they discussed “what happened outside the 
13

courtroom.” This claim is supported in the affidavit, wherein 

Roehrs’s counsel noted that “Sergeant Couch told the Honorable 

Judge Cisneros about the incident” in chambers. As a result, 

Judge Cisneros had knowledge of Sergeant Couch’s version of the 

events in the hallway. This occurrence, however, did not give the 

judge personal knowledge of disputed facts. Neither party disputed 

that, before trial, Sergeant Couch recited roughly the same version 

of the events in the hallway that he testified to at trial. Therefore, 

we do not find the in-chambers meeting relevant to our analysis of 

whether Judge Cisneros should be disqualified except insofar as it 

contributes to an overall appearance of bias or prejudice.

¶ 21 With regard to Judge’s Cisneros’s knowledge of what 

transpired in the courtroom, the court’s order is also correct when 

it asserts that what a judge learns in her judicial capacity is 

ordinarily an appropriate basis for her observations and “the use of 

such information is not the kind of matter that results in 

disqualification.” Smith, 629 P.2d at 1057. Conversely, when a 

judge learns something from a source unconnected to her judicial 

role, she may be disqualified on that basis. United States v. Grinnell 

Corp., 384 U.S. 563, 583 (1966) (noting that in order to be 
14

disqualifying, the alleged bias must come from an extrajudicial 

source, not what the judge observed while presiding over the case); 

Comiskey, 926 P.2d at 545.

¶ 22 This rule has come to be known as the “extrajudicial source 

doctrine,” and its application will ordinarily protect a judge from 

disqualification based on knowledge gained in the course of her 

judicial duties. Liteky v. United States, 510 U.S. 540, 544 (1994)

(recognizing the doctrine and explaining that to be disqualifying, 

alleged bias and prejudice must “stem from an extrajudicial source” 

(quoting Grinnell, 384 U.S. at 583)). The doctrine applies where a

defendant moves to disqualify a judge on the basis that she has 

previously ruled against him. People v. Boehmer, 767 P.2d 787, 790 

(Colo. App. 1988). It similarly prevents comments demonstrating a

negative opinion of the parties or witnesses from serving as a basis 

for disqualification as long as such comments arose from knowledge 

gained during court proceedings. People v. Dobler, 2015 COA 25, 

¶ 26 (noting that judicial statements that are “critical or 

disapproving of, or even hostile to, counsel, the parties, or their 

cases, ordinarily do not support a bias or partiality challenge,” 

unless the opinion comes from an extrajudicial source (quoting 
15

Liteky, 510 U.S. at 555)). The extrajudicial source doctrine even 

counsels against disqualification where a judge has formed an 

opinion regarding the guilt or innocence of a defendant unless the 

opinion is so pronounced that it is likely to affect the judge’s ability 

to be impartial at trial. Walker v. People, 126 Colo. 135, 145, 248 

P.2d 287, 293 (1952), superseded by rule on other grounds as stated 

in People in Interest of E.G., 2016 CO 19, ¶ 13 n.3.7

¶ 23 We therefore consider the following question in this case: 

When a judge has witnessed an alleged criminal offense in her 

courtroom, does the extrajudicial source doctrine allow her to 

preside over the criminal trial of the offense? To answer this 

question, we must consider the doctrine’s limitations and whether, 

in this case, its protections must yield to serious concerns about

the appearance of partiality.

 

7 Walker was decided under chapter 170, section 1 of the 1935 

Colorado Statutes Annotated, which contained a narrower standard 

requiring that a judge be deemed incompetent to hear or try the 

case where she is “interested or prejudiced” and not including the 

modern standard stated in C.J.C. 2.11(A)(1). 
16

D. The Scope of the Extrajudicial Source Doctrine

¶ 24 Contrary to the People’s position, the extrajudicial source 

doctrine does not automatically shield a judge from disqualification 

due to a judge’s courtroom knowledge or activities. In Liteky, the 

Supreme Court noted that “[s]ince neither the presence of an 

extrajudicial source necessarily establishes bias, nor the absence of 

an extrajudicial source necessarily precludes bias, it would be 

better to speak of the existence of a significant (and often 

determinative) ‘extrajudicial source’ factor, than of an ‘extrajudicial 

source’ doctrine, in recusal jurisprudence.” 510 U.S. at 554-55. 

The doctrine has repeatedly been defined as limited in scope. See, 

e.g., Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (noting that 

the extrajudicial source doctrine is but one factor in the 

disqualification analysis); Davis v. Bd. of Sch. Comm’rs, 517 F.2d 

1044, 1051 (5th Cir. 1975) (noting that there is an exception to the 

doctrine where pervasive bias and prejudice have been 

demonstrated), superseded by statute on other grounds, Act of Dec. 

5, 1974, Pub. L. No. 93-512, 88 Stat. 1609.

¶ 25 Importantly, our supreme court has declined to view the 

extrajudicial source doctrine as a protection against disqualification 
17

in all cases, including those cases where a judge’s impartiality is 

questioned based on knowledge she gained from courtroom 

proceedings. In Wright v. District Court, 731 P.2d 661, 665 (Colo. 

1987), the supreme court disqualified a judge because his 

participation in successive cases raised an appearance of 

impropriety. The trial judge presided over a case in which the 

plaintiff claimed that his attorney had committed malpractice. 

During the trial, the judge heard evidence concerning the attorney’s

unprofessional conduct toward the plaintiff. Consequently, the 

judge filed a grievance with the Colorado Supreme Court Grievance 

Committee recommending “harsh discipline” against the attorney. 

Id. at 663. Subsequently, the same judge was assigned to preside 

over a different malpractice case against the attorney’s firm and 

several of its other partners. Counsel for the firm requested the 

judge’s recusal and notified the court that he wished to take the 

judge’s deposition in the grievance proceedings. Id. at 664. The 

judge denied the motion for disqualification. In reversing the trial 

court’s order, the Wright court concluded that because the judge 

might appear as a witness against the attorney in the grievance 

proceeding, his participation in the malpractice case against the 
18

attorney’s partners and firm created an appearance of impropriety. 

Id. This appearance of impropriety arose entirely from opinions 

formed as a result of the judge’s duties in the preceding case.

¶ 26 Similarly, in In re Estate of Elliot, 993 P.2d 474 (Colo. 2000), a 

judge gained knowledge of a potential crime while presiding over a 

civil contempt case and later referred the case to the district 

attorney for criminal prosecution. Noting that the judge appeared 

to be personally involved in the conflict and that she was a potential 

witness in the subsequent criminal trial, the supreme court held 

that a different judge should be substituted in the contempt 

proceedings on remand.8 Id. at 481-82. The fact that the judge

had gained her knowledge of the facts while performing her judicial 

duties did not preclude her disqualification. See also Estep, 705 

P.2d at 525-27 (requiring disqualification where a judge who had 

 

8 Our holding here should not be construed to narrow a judge’s 

ability to participate in contempt actions arising from a case in 

which she presided where it is otherwise proper under the statutes, 

rules, or common law and where she is not presiding over a case in 

which she is likely to be a witness. See § 18-1-104(3), C.R.S. 2018; 

C.R.C.P. 107; People v. Barron, 677 P.2d 1370, 1372-74 (Colo. 

1984) (examining a court’s common law power to punish a 

defendant for criminal contempt).
19

reviewed a defendant’s postconviction motion stated, “I hope this 

witness is more credible than your other witness” in response to the 

defendant’s request to depose a new witness).

¶ 27 In addition, where Colorado courts have declined to require 

disqualification based on a judge’s participation in prior 

proceedings, they have repeatedly emphasized that there was no 

obligation to recuse because the judge was not presiding over a case 

in which she might be a witness. People v. Schupper, 2014 COA 

80M, ¶¶ 63-65 (declining to disqualify a judge who had witnessed

perjury in his courtroom because the perjury case had been 

transferred to another court, and he was therefore not presiding 

over a case in which he was “likely to be a material witness in the 

proceeding” (quoting C.J.C. 3(C)(1)(d)(IV) (2009)));9 Hagos, 250 P.3d 

at 612-13 (declining to disqualify a judge because the affidavit 

“indicated that the judge did not personally observe or hear any 

threats during the hearing”).

¶ 28 Most significantly, the People do not cite any Colorado case, 

and we have found none, in which the extrajudicial source doctrine 

 

9 This language now appears in C.J.C. 2.11(A)(2)(d).
20

protects against disqualification when a judge witnesses a crime or 

part of a crime in her courtroom and then presides over the trial 

concerning that very same crime. Because Colorado law does not 

contain a case extending the extrajudicial source doctrine to cover 

this circumstance, we do not perceive that the extrajudicial source 

doctrine prevents disqualification here.

E. Application

¶ 29 Roehrs suggests that the judge was subject to disqualification 

under C.J.C. 2.11(A)(2)(d) because she was likely to be a material 

witness. However, she does not develop that argument in her brief. 

A material witness is one whose testimony goes to a “fact affecting 

the merits of the cause and about which no other witness might 

testify.” Schupper, ¶ 65 (quoting Ex parte Jones, 86 So. 3d 350, 352 

(Ala. 2011)). Roehrs does not specify any facts about which only 

the judge could testify, and we note that the attorneys and Sergeant 

Couch were all witnesses to Roehrs’s in-court behavior. They all 

could have testified in the criminal case, obviating the need for 

Judge Cisneros’s testimony. Accordingly, we decline to base our 

ruling on the thread that the judge was subject to disqualification 

as a material witness.
21

¶ 30 However, even if Judge Cisneros was not a likely material 

witness, a judge need not be a likely material witness for 

disqualification to be mandated under the Code of Judicial 

Conduct. Rather, all that is required under Rule 2.11(A)(1) is 

personal knowledge of facts that are in dispute, which Judge 

Cisneros had in this case.

¶ 31 Based on the judge’s personal knowledge of disputed facts,

there was a substantial appearance of impropriety. This knowledge

calls into question her ability to be impartial. “[A] judge cannot be, 

or cannot appear to be, impartial if he has personal knowledge of 

evidentiary facts that are in dispute.”10 In re M.C., 8 A.3d 1215, 

 

10 Although the motion at issue in this case did not cite CRE 605 

and the parties also failed to cite it on appeal, CRE 605 precludes a 

judge from presiding at trial in a case where she is a witness, 

demonstrating a concern for the appearance of partiality raised in 

such a circumstance. In fact, under substantially similar versions 

of CRE 605, courts in other states have noted the propriety of 

disqualifying judges who have personal knowledge of disputed facts 

even where a judge does not testify because the judge’s knowledge, 

nonetheless, raises an appearance of partiality. 

The problem attendant to a judge having 

personal knowledge of the facts is that he may 

thereby be transformed into a witness for one 

party. . . . Whether, in a bench trial, a judge 

can avoid an involvement destructive of 
22

1229 (D.C. 2010) (quoting United States v. Alabama, 828 F.2d 1532, 

1545 (11th Cir. 1987) (per curiam)).

¶ 32 In addition, the judge’s knowledge of disputed facts would 

have affected her performance as a presiding judge. See Tripp v. 

Borchard, 29 P.3d 345, 346-47 (Colo. App. 2001) (disqualifying a 

judge from presiding over a malpractice case, in part, because he 

had acted as the settlement judge in prior litigation and therefore 

had personal knowledge of disputed evidentiary facts). For 

example, during the course of her participation in this case, Judge 

Cisneros presided over the preliminary hearing on the charge of 

retaliation against a witness. This charge required the State to 

show that Roehrs intentionally used a threat or act of harassment 

 

impartiality where he has personal knowledge 

of material facts in dispute is a question that 

cannot be answered satisfactorily . . . . 

State v. Barker, 420 N.W.2d 695, 700-01 (Neb. 1988) (quoting Price 

Bros. Co. v. Phila. Gear Corp., 629 F.2d 444, 447 (1980)); see State 

v. Gardner, 661 N.W.2d 116, 118 (Iowa 2003) (declining to reverse a 

conviction because the judge was not a witness in the same 

proceeding at which he presided but noting that the rule prohibiting 

a judge from being a witness “is violated whenever the judge 

functions as a witness, even though the judge may not actually take 

the stand to testify”).
23

on Sergeant Couch as retaliation against him. See § 18-8-706(1). 

Sergeant Couch testified and was cross-examined at this hearing, 

providing testimony regarding whether Judge Cisneros forcefully 

ordered Roehrs to leave the dependency and neglect hearing or 

politely asked her to leave. This line of questioning was relevant to 

whether the judge seemed alarmed by Roehrs’s behavior. Judge 

Cisneros was tasked with deciding whether the prosecution had 

demonstrated probable cause for the charges. In doing so, she was 

necessarily called on to examine the sufficiency of the evidence with 

respect to facts that she had personally observed, including 

whether Roehrs demonstrated sufficient intent to commit the crime

and whether the judge herself had been alarmed by Roehrs’s

behavior when she ordered her out of the courtroom.

¶ 33 Though a judge is ordinarily protected from disqualification 

based on opinions, attitudes, and knowledge gained during her 

participation in judicial proceedings, the extrajudicial source 

doctrine does not prevent disqualification where those opinions, 

attitudes, and knowledge raise reasonable questions about a judge’s 

ability to impartially weigh the testimony. While it is true that 

“[i]mpartiality is not gullibility,” it is also true that to conduct a fair 
24

trial, a judge must not know too much. Liteky, 510 U.S. at 551 

(quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). 

She should not be in a position to contrast the evidence presented 

at hearings and at trial with her own memory of the conduct at 

issue. Accordingly, Roehrs’s motion was sufficient to raise an 

appearance of bias or prejudice, making Judge Cisneros’s

continued participation improper.

¶ 34 The trial judge’s actions in this case deviate from the standard 

delineated in C.J.C. 2.11(A) and the resulting appearance of bias

requires us to reverse the conviction. Botham, 629 P.2d at 603 

(reversing a criminal conviction, in part, on the basis that there was 

an appearance of prejudice against the defendant); see, e.g., C.Y., 

¶¶ 14, 24-25 (reversing a termination decision where the judge 

operated under an appearance of impropriety); Wood Bros. Homes, 

Inc. v. City of Fort Collins, 670 P.2d 9, 10 (Colo. App. 1983)

(reversing a judgment due to an appearance of partiality caused by 

a violation of the code).

III. Conclusion

¶ 35 We reverse the judgment of conviction and remand with 

directions to grant Roehrs a new trial before a different judge.
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JUDGE NAVARRO and JUDGE WELLING concur.