PEOPLE v STEVENS

Docket No. 149380. Argued March 11, 2015. Decided July 23, 2015.

Adam B. Stevens was convicted of second-degree murder, MCL 750.317, and seconddegree child abuse, MCL 750.136b(3), following a jury trial in the Jackson Circuit Court, John 

G. McBain, J. The charges stemmed from the death of defendant’s three-month-old son, Kian 

Stevens. The prosecution alleged that defendant caused Kian’s death by either shaking him or 

slamming him against an object. Defendant alleged that he tripped and fell while holding Kian, 

and that as he fell, he lost control of Kian, who fell to the floor. Defendant denied shaking or 

slamming Kian. Defendant appealed his convictions and sentences. In an unpublished opinion 

per curiam, the Court of Appeals, METER, P.J., and RIORDAN, J. (SERVITTO, J., dissenting), 

affirmed. Defendant sought leave to appeal. The Supreme Court ordered and heard oral 

argument on whether to grant the application or take other peremptory action. 497 Mich 898 

(2014).

In a unanimous opinion by Justice BERNSTEIN, the Supreme Court held:

A judge’s conduct pierces the veil of judicial impartiality and violates the constitutional 

guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely 

that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy 

or partiality against a party. In evaluating the totality of the circumstances, the reviewing court 

should inquire into a variety of factors including, but not limited to, the nature of the trial judge’s 

conduct, the tone and demeanor of the judge, the scope of the judicial conduct in the context of 

the length and complexity of the trial and issues therein, the extent to which the judge’s conduct 

was directed at one side more than the other, and the presence of any curative instructions, either 

at the time of an inappropriate occurrence or at the end of trial. When the issue is preserved and 

a reviewing court determines that the trial judge’s conduct pierced the veil of judicial 

impartiality, the court may not apply harmless-error review. Rather, the judgment must be 

reversed and the case remanded for a new trial. In this case, defendant challenged the judge’s 

questioning of himself and his expert witness, to which defense counsel objected vigorously at 

trial. The judge’s questions implied partiality, were argumentative, invaded the role of the 

prosecutor, and did not clarify testimony or elicit additional relevant information. The judge’s 

response to objections reflected an erroneous belief that his power to question witnesses had no 

limitations. The judge’s tone and demeanor also weighed in favor of holding that the judge 

improperly created the appearance of bias against defendant. The words used by the judge and

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
the sequence of his questions projected incredulity, bias, and hostility. The complexity of the 

issues presented during trial did not warrant the extent of the judicial intervention that occurred, 

and the questioning targeted defendant’s case. Although the judge gave a general curative 

instruction at the end of the trial, the instruction did not overcome the appearance of bias the 

judge exhibited against the defense throughout the trial. Considering the totality of the 

circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by 

creating the appearance of advocacy or partiality against defendant, piercing the judicial veil and 

depriving defendant of his right to a fair trial. 

Reversed and remanded for a new trial before a different judge.

©2015 State of Michigan
FILED July 23, 2015

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 149380

ADAM BENJAMIN STEVENS,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

BERNSTEIN, J.

This case requires us to address the appropriate standard for determining when a 

trial judge’s conduct in front of a jury has deprived a party of a fair and impartial trial,

and whether that standard was met in this case.

A trial judge’s conduct deprives a party of a fair trial if the conduct pierces the veil 

of judicial impartiality. A judge’s conduct pierces this veil and violates the constitutional 

guarantee of a fair trial when, considering the totality of the circumstances, it is 

reasonably likely that the judge’s conduct improperly influenced the jury by creating the 

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein
2

appearance of advocacy or partiality against a party. In evaluating the totality of the 

circumstances, the reviewing court should inquire into a variety of factors including, but 

not limited to, the nature of the trial judge’s conduct, the tone and demeanor of the judge, 

the scope of the judicial conduct in the context of the length and complexity of the trial 

and issues therein, the extent to which the judge’s conduct was directed at one side more 

than the other, and the presence of any curative instructions, either at the time of an 

inappropriate occurrence or at the end of trial. When the issue is preserved and a 

reviewing court determines that the trial judge’s conduct pierced the veil of judicial 

impartiality, the court may not apply harmless-error review. Rather, the judgment must 

be reversed and the case remanded for a new trial.

In this case, the trial judge’s conduct with respect to defendant’s expert witness

pierced the veil of judicial impartiality, depriving defendant of the right to a fair trial. As 

a result, the judgment of the Court of Appeals is reversed and the case is remanded for a 

new trial before a different judge.

I. FACTS AND PROCEDURAL HISTORY

On August 19, 2010, three-month-old Kian Stevens died. Defendant, Kian’s 

father, was eventually charged with first-degree felony murder, MCL 750.316(1)(b), and 

first-degree child abuse, MCL 750.136b(2), in connection with Kian’s death. A jury trial 

was held over the course of eight days. The prosecution’s theory was that defendant 

caused Kian’s death either by shaking him or by slamming him against an object. Kian’s 

mother, Crystal Anderson, testified that defendant had been living with her for about a 

year when Kian died. On August 19, at around 12:30 a.m., Anderson was awakened by 
3

the sound of Kian crying. Upon entering the living room, she found defendant holding 

Kian upside down. Soon after, the child stopped breathing. While Anderson called 911, 

defendant performed CPR. Kian was placed on life support at a local hospital and then

flown to Mott Children’s Hospital. At Mott, Kian was declared brain dead, having 

suffered hemorrhaging to the brain. Dr. Bethany Mohr, the director of the child 

protection team at Mott, testified for the prosecution as an expert in pediatric child abuse. 

Mohr opined that Kian’s injuries suggested that Kian had suffered head trauma caused by

physical abuse. Dr. Jeffrey Jentzen, a medical examiner who performed the autopsy on 

Kian, testified for the prosecution as an expert in forensic pathology. He testified that 

Kian died from abusive head trauma and that the cause of death was homicide. Jentzen 

was also called as a rebuttal witness.

Defendant testified on his own behalf. Defendant stated that, on the morning in 

question, he had gotten out of bed to get a drink of water when he noticed Kian moving 

around in his bassinet. When he picked Kian up to comfort him, defendant tripped on a 

toy truck lying on the floor and fell forward. As defendant fell, he lost control of Kian, 

who fell to the floor. Defendant denied shaking or slamming Kian. Defendant admitted

that he did not tell Anderson until several weeks after the incident that he had dropped

Kian. Defendant further testified that, during an interview with police detectives, he 

denied dropping Kian because he felt intimidated.

Dr. Mark Shuman, an associate medical examiner for Miami-Dade County in 

Florida, testified for the defense as an expert in forensic pathology. Shuman testified that 
4

it was possible that Kian died from injuries sustained in a short fall1 from defendant’s 

arms to the floor. Shuman stated that he did not believe a baby could die from being 

shaken vigorously, but also testified that forensic pathologists were generally divided on 

the issue. Shuman noted that even if shaking could cause death, Kian did not show signs 

of any neck injury, trauma that would be present if vigorous shaking had occurred.

However, Shuman acknowledged that the cause of death could be homicide if one 

believed certain testimony offered by the prosecution’s witnesses.

Ultimately, defendant was acquitted of the first-degree charges but was convicted 

of two lesser charges: second-degree murder, MCL 750.317, and second-degree child 

abuse, MCL 750.136b(3). The trial judge sentenced defendant to concurrent prison terms 

of 25 to 50 years for the murder conviction and 32 to 48 months for the child abuse 

conviction.

On appeal, defendant argued that he was denied a fair trial because the trial judge, 

through his questioning of defendant and defendant’s expert, demonstrated partiality in 

front of the jury. In a split opinion, the Court of Appeals rejected this claim and affirmed 

the convictions. The majority held that “[c]laims of judicial misconduct are reviewed to 

determine whether the trial court’s comments or conduct evidenced partiality that could 

have influenced the jury to a party’s detriment.” People v Stevens, unpublished opinion 

per curiam of the Court of Appeals, issued April 10, 2014 (Docket No. 309481), p 3, 

citing People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). The majority 

 1 During trial, the term “short fall” was generally used to refer to a child’s fall from a 

height of 4 feet or less.
5

stated that, while a judge may ask questions of witnesses, certain questions could indicate 

improper partiality:

The appropriate test to determine whether the trial court’s comments 

or conduct pierced the veil of judicial impartiality is whether the trial 

court’s conduct or comments were of such a nature as to unduly influence 

the jury and thereby deprive the appellant of his right to a fair and impartial 

trial. [Id., quoting People v Conley, 270 Mich App 301, 308; 715 NW2d 

377 (2006) (quotation marks omitted).] 

Applying this standard, the majority held that the trial judge’s questions did not pierce the 

veil of judicial impartiality.

The dissent, however, applied a different standard and came to the opposite 

conclusion. The dissent stated that, to determine whether a judge’s conduct pierced the 

veil of impartiality, a reviewing court must consider whether the conduct “ ‘may well 

have unjustifiably aroused suspicion in the mind of the jury as to a witness’ 

credibility, . . . and whether partiality quite possibly could have influenced the jury to the 

detriment of defendant’s case.’ ” Stevens (SERVITTO, J., dissenting), unpub op at 1,

quoting People v Sterling, 154 Mich App 223, 228; 397 NW2d 182 (1986). The dissent 

determined that, on numerous occasions during the trial, the judge had inappropriately 

questioned defense witnesses, undermining the credibility of those witnesses and 

indicating judicial partiality. Consequently, the dissent concluded that the judge’s

conduct pierced the veil of impartiality, requiring reversal.

II. STANDARD OF REVIEW

The question whether judicial misconduct denied defendant a fair trial is a 

question of constitutional law that this Court reviews de novo. People v Pipes, 475 Mich 

267, 274; 715 NW2d 290 (2006); In re Susser Estate, 254 Mich App 232, 236-237; 657 
6

NW2d 147 (2002). As discussed in greater detail later in this opinion, once a reviewing 

court has concluded that judicial misconduct has denied the defendant a fair trial, a 

structural error has occurred and automatic reversal is required. Arizona v Fulminante,

499 US 279, 309; 111 S Ct 1246; 113 L Ed 2d 302 (1991).

III. APPROPRIATE STANDARD FOR DETERMINING

JUDICIAL PARTIALITY

This Court has noted that “great care should be exercised that the court does not 

indicate its own opinion and does not lay undue stress upon particular features of a 

witness’ testimony that might, in the eyes of the jury, tend to impeach [the witness].” 

Simpson v Burton, 328 Mich 557, 564; 44 NW2d 178 (1950). However, there is no clear 

line of precedent establishing the appropriate test in this state to determine whether a trial 

judge’s conduct pierced the veil of judicial impartiality. Indeed, the disagreement 

between the members of the Court of Appeals panel in this case illustrates the uncertainty 

that has arisen with respect to this issue. We take this opportunity to clarify and 

articulate the proper standard a reviewing court must apply.

A. PRIOR ARTICULATIONS OF THE STANDARD

The chain of cases cited by the Court of Appeals majority and dissent leads us 

back to Simpson. In that case, this Court stated that the judge’s questions “in some 

instances may well have unjustifiably aroused suspicion in the mind of the jury as to 

defendant’s credibility . . . .” Id. at 563-564 (emphasis added). Approximately seven 

years later, this Court articulated a similar standard: whether it “may well have created an 

atmosphere of prejudice which deprived defendant of a fair trial and contributed to his 
7

conviction.” People v Cole, 349 Mich 175, 200; 84 NW2d 711 (1957) (emphasis added). 

Numerous cases have since adopted the “may well have” standard.

2

 

Unfortunately, application of the standard set forth in Simpson and Cole has been 

inconsistent. In People v Young, 364 Mich 554, 558; 111 NW2d 870 (1961), this Court 

cited Cole for the proposition that we have “not hesitated to reverse for new trial when 

the trial judge’s questions or comments were such as to place his great influence on one 

side or the other in relation to issues which our law leaves to jury verdict.” (Emphasis 

added.) In People v Wilson, 21 Mich App 36, 37; 174 NW2d 914 (1969), the Court of 

Appeals cited Cole in stating that the standard was “whether the trial judge’s comments 

or questions were of such a nature as to unduly influence the jury and thereby deprive the 

appellant of his right to a fair and impartial trial.” (Emphasis added.) Neither the phrase 

“great influence” nor the phrase “unduly influence” appears anywhere in Cole; Cole

instead uses the “may well have” language.

B. NEW STANDARD

It appears that this early split explains the divide between the two formulations of 

the standard seen in the Court of Appeals’ opinions in this case. Having reviewed how 

the different formulations of the test emerged, we now turn to the more difficult question 

of how to settle on a clear standard. Both the “unduly influence” standard and the “may 

well have . . . quite possibly could have” standard lack any substantive guidance in

 2 See, e.g., People v Davis, 216 Mich App 47, 50-52; 549 NW2d 1 (1996); Cheeks, 216 

Mich App at 480; People v Conyers, 194 Mich App 395, 405; 487 NW2d 787 (1992); 

Sterling, 154 Mich App at 228; People v Redfern, 71 Mich App 452, 457; 248 NW2d 

582 (1976); People v Smith, 64 Mich App 263, 267; 235 NW2d 754 (1975).
8

explaining what exactly a reviewing court must examine when determining whether error 

requiring reversal occurred. In order to provide clarity going forward, we thus propose a 

new articulation of the appropriate test, grounded in a criminal defendant’s right to a fair 

and impartial jury trial. See Cole, 349 Mich at 200; People v Bigge, 297 Mich 58, 72; 

297 NW 70 (1941) (“Once the door is open for allowing the opinion of the court to be 

impressed upon jurors that one charged with crime is guilty of the offense, the 

fundamental right of trial by jury is impaired.”). A trial judge’s conduct deprives a party 

of a fair trial if a trial judge’s conduct pierces the veil of judicial impartiality. Wilson, 21 

Mich App at 37-38 (“If an examination of the record reveals that the veil of judicial 

impartiality was pierced by the trial judge, the case must be reversed.”); People v 

Bedsole, 15 Mich App 459, 462; 166 NW2d 642 (1969) (“The veil of judicial impartiality 

should not have been pierced by the trial judge on this occasion.”). A judge’s conduct 

pierces this veil and violates the constitutional guarantee of a fair trial when, considering 

the totality of the circumstances, it is reasonably likely that the judge’s conduct 

improperly influenced the jury by creating the appearance of advocacy or partiality 

against a party.3

 

 3 Consistent with the principle that we do not apply harmless-error review to claims of 

judicial partiality, discussed later in this opinion, the reviewing court must determine 

whether the judge’s conduct improperly influenced the jury without considering the 

weight of the evidence presented against the aggrieved party or whether the conduct 

actually contributed to the jury’s verdict. Rather, in considering improper influence, the 

reviewing court must determine whether the judge’s conduct was sufficiently severe and 

clear so as to create the appearance of bias against the aggrieved party. It is the existence 

of this appearance that is considered improper influence, and the nonexhaustive factors 

outlined within this opinion are targeted at determining whether the judge’s conduct 

created an appearance of bias.
9

This inquiry requires a fact-specific analysis. A single inappropriate act does not 

necessarily give the appearance of advocacy or partiality, but a single instance of 

misconduct may be so egregious that it pierces the veil of impartiality. See, e.g., Young,

364 Mich at 559 (holding that the judge’s colloquy with the defendant’s medical expert 

improperly invaded the province of the jury on the crucial issue which was theirs to 

decide); McMillan v Castro, 405 F3d 405, 410 (CA 6, 2005) (stating that reviewing 

courts must consider “whether, with reference to a range of acceptable, though not 

necessarily model, judicial behavior, the [judge]’s conduct falls demonstrably outside this 

range so as to constitute hostility or bias.”). Ultimately, the reviewing court should not 

evaluate errors standing alone, but rather consider the cumulative effect of the errors. See 

Cole, 349 Mich at 199-200 (concluding that certain judicial comments “standing alone” 

did not constitute error, but “taken together” the errors deprived the defendant of a fair 

trial).

These errors must be considered within the context of a given case, i.e., the totality 

of the circumstances, to determine whether the judge demonstrated the appearance of 

advocacy or partiality on the whole. In evaluating the totality of the circumstances, the 

reviewing court should inquire into a variety of factors, including the nature of the

judicial conduct, the tone and demeanor of the trial judge, the scope of the judicial 

conduct in the context of the length and complexity of the trial and issues therein, the 

extent to which the judge’s conduct was directed at one side more than the other, and the 

presence of any curative instructions. See Freudeman v Landing of Canton, 702 F3d 

318, 328 (CA 6, 2012), citing McMillan, 405 F3d at 409-410. This list of factors is not 

intended to be exhaustive. Reviewing courts may consider additional factors if they are 
10

relevant to the determination of partiality in a particular case. Moreover, the aggrieved 

party need not establish that each factor weighs in favor of the conclusion that the judge 

demonstrated the appearance of partiality for the reviewing court to hold that there is a 

reasonable likelihood that the judge’s conduct improperly influenced the jury. The 

reviewing court must consider the relevance and weigh the significance of each factor 

under the totality of the circumstances of the case.

As an initial matter, a reviewing court should consider the nature or type of 

judicial conduct itself. Judicial misconduct may come in myriad forms, including 

belittling of counsel, inappropriate questioning of witnesses, providing improper strategic 

advice to a particular side, biased commentary in front of the jury, or a variety of other 

inappropriate actions. See e.g., Cole, 349 Mich at 188-200 (noting that improper conduct 

consisted of the judge’s heated cross-examination of a defense witness, giving advice to 

the prosecutor, and belittling defense counsel); Young, 364 Mich at 559 (noting that the 

judge allowed his disbelief of the defendant’s medical expert to become evident to the 

jury); People v Neal, 290 Mich 123, 129; 287 NW 403 (1939) (“Pert remarks and quips 

from the bench have no place in the trial of a criminal case . . . .”); Simpson, 328 Mich at 

563-564 (concluding that the judge’s questions of the defendant were so “very many in 

number” that they overstepped the bounds of judicial impartiality); Loranger v Jageman, 

169 Mich 84, 85-86; 134 NW 967 (1912) (holding that the trial judge inappropriately 

allowed his impression that the plaintiff had a meritorious case to affect his charge to the 

jury).

Identifying the nature of the conduct provides the starting point to evaluate 

whether the conduct overstepped the line of judicial impartiality. For instance, when
11

evaluating a judge’s questioning of witnesses, a reviewing court must first bear in mind 

that such interrogation is generally appropriate under MRE 614(b).4

 This Court has 

stated that the central object of judicial questioning should be to clarify. See Young, 364 

Mich at 558; Simpson, 328 Mich at 564. Therefore, it is appropriate for a judge to 

question witnesses to produce fuller and more exact testimony or elicit additional relevant 

information. Simpson, 328 Mich at 564; Sterling, 154 Mich App at 228. Judicial 

questioning, nevertheless, has boundaries. The Michigan Code of Judicial Conduct

states:

A judge may properly intervene in a trial of a case to promote 

expedition, and prevent unnecessary waste of time, or to clear up some 

obscurity, but the judge should bear in mind that undue interference, 

impatience, or participation in the examination of witnesses, or a severe 

attitude on the judge’s part toward witnesses . . . may tend to prevent the 

proper presentation of the cause, or the ascertainment of truth in respect 

thereto. . . . In addressing counsel, litigants, or witnesses, the judge should 

avoid a controversial manner or tone. A judge should avoid interruptions 

of counsel in their arguments except to clarify their positions, and should 

not be tempted to the unnecessary display of learning or a premature 

judgment. [Code of Judicial Conduct, Canon 3(A)(8).] 

It is inappropriate for a judge to exhibit disbelief of a witness, intentionally or 

unintentionally. Young, 364 Mich at 558-559. It is essential that the judge “not permit 

his own views on disputed issues of fact to become apparent to the jury.” Id. at 558. See 

also In re Parkside Housing Project, 290 Mich 582, 598; 287 NW 571 (1939); Loranger, 

169 Mich at 86.

 4 “The court may interrogate witnesses, whether called by itself or by a party.” MRE 

614(b).
12

Second, a reviewing court should consider the tone and demeanor the trial judge 

displayed in front of the jury. Because jurors look to the judge for guidance and 

instruction, they “are very prone to follow the slightest indication of bias or prejudice 

upon the part of the trial judge.” In re Parkside Housing Project, 290 Mich at 600

(quotation marks and citation omitted). See also Bigge, 297 Mich at 70 (“It is well 

known that jurors in a criminal case may be impressed by any conclusion reached by the 

judge as to the guilt of the accused.”). It is possible for a court to deprive a party of a fair 

trial without intending to do so if the manner in which the judge conducts the case gives 

“a plain exhibition to the jury of his own opinions in respect to the parties . . . .” Young, 

364 Mich at 559 (quotation marks and citation omitted). See also Wheeler v Wallace, 53 

Mich 355, 357-358; 19 NW 33 (1884) (“It is, nevertheless, possible for a judge, however 

correct his motives, to be unconsciously so disturbed by circumstances that should not 

affect him, as to do and say, in the excitement of a trial, something, the effect of which he 

would not at the time realize, and thereby accomplish a mischief which was not 

designed.”). Therefore, it is not necessary to impute to the judge any intentional bias; on 

the contrary, the initial assumption is that a trial judge designs to be impartial. See 

Wheeler, 53 Mich at 358. To ensure an appearance of impartiality, a judge should not 

only be mindful of the substance of his or her words, but also the manner in which they 

are said. See Cole, 349 Mich at 196-200; Brown v Walter, 62 F2d 798, 800 (CA 2, 1933) 

(“Justice does not depend upon legal dialectics so much as upon the atmosphere of the 

court room, and that in the end depends primarily upon the judge.”). A judge should

avoid questions that are intimidating, argumentative, or skeptical. See People v Wilder, 

383 Mich 122, 124; 174 NW2d 562 (1970). Hostile questions from a judge are 
13

particularly inappropriate when the witnesses themselves have done nothing to deserve 

such heated inquiry. See Cole, 349 Mich at 199 (“The record [did] not disclose any 

action or tone of voice on the part of the witness which in anywise threatened the orderly 

conduct of the trial. It would seem that the trial judge could have dealt with these matters 

with less heat.”). A judge must proceed with particular care when engaging with a 

criminal defendant. Id. at 196. Judicial questioning might be more necessary when a 

judge is confronted with a difficult witness who refuses to answer questions posed by 

attorneys or repeatedly responds to those questions with unclear answers, although the 

manner of judicial involvement remains at the center of the examination by a reviewing 

court. McMillian, 405 F3d at 410.

We recognize that appellate courts typically do not have the benefit of viewing a 

trial judge’s tone and demeanor first hand. However, in certain circumstances, the very 

nature of the words used by the judge can exhibit hostility, bias, or incredulity. See Cole, 

349 Mich at 197-200 (noting that several interjections by trial judge tended “to belittle 

defendant’s lawyer in the presence of the jury” or exhibited “rather more emotion on the 

part of the trial judge than the records seem to warrant”). Additionally, as occurred in the 

instant case, an objection by trial counsel may specifically note the inappropriateness of 

the judge’s demeanor in the courtroom, further aiding the appellate court in 

understanding the tenor of judicial involvement.

Third, a reviewing court should consider the scope of judicial intervention within 

the context of the length and complexity of the trial, or any given issue therein.

Freudeman, 702 F3d at 328. In a long trial, or one with several complicated issues posed 

to the jury, for instance, it may be more appropriate for a judge to intervene a greater 
14

number of times than in a shorter or more straightforward trial. McMillan, 405 F3d at 

410. Likewise, given the principle that a judge’s questions may serve to clarify points 

that are obscure or confusing, Simpson, 328 Mich at 564, a judge’s inquiries may be more 

appropriate when a witness testifies about a topic that is convoluted, technical, scientific,

or otherwise difficult for a jury to understand.

Fourth, and in conjunction with the third factor, a reviewing court should consider

the extent to which a judge’s comments or questions were directed at one side more than 

the other. Freudeman, 702 F3d at 328. Judicial partiality may be exhibited when an 

imbalance occurs with respect to either the frequency of the intervention or the manner of 

the conduct. See Cole, 349 Mich at 188-189 (finding judicial intervention unacceptable 

when the record contained 16 pages of both extensive and heated cross-examination by 

the trial judge of the defendant’s witnesses, but no similar examination of the 

prosecution’s witnesses). In Young, 364 Mich at 558-559, this Court noted that we have 

“not hesitated to reverse for new trial when the trial judge’s questions or comments were 

such as to place his great influence on one side or the other in relation to issues which our 

law leaves to jury verdict.”

Lastly, the presence or absence of a curative instruction is a factor in determining 

whether a court displayed the appearance of advocacy or partiality. The model jury 

instructions—both for civil and criminal trials—emphasize that a judge’s comments, 

rulings, and questions do not constitute evidence and that the jury should not attempt to 

discern the judge’s personal opinion while considering the case. See M Civ JI 2.04(2)(b)

and (c); M Crim JI 2.4(1); M Crim JI 2.8. Additionally, during the course of a 

proceeding, a trial judge has the ability to issue a curative instruction immediately in 
15

response to conduct that could give rise to the appearance of bias. Because “[i]t is well 

established that jurors are presumed to follow their instructions,” People v Graves, 458 

Mich 476, 486; 581 NW2d 229 (1998), a curative instruction will often ensure a fair trial 

despite minor or brief inappropriate conduct. Depending on the circumstances, an 

immediate curative instruction may further alleviate any appearance of advocacy or 

partiality by the judge. That said, in some instances judicial conduct may so overstep its 

bounds that no instruction can erase the appearance of partiality. In re Parkside Housing 

Project, 290 Mich at 599-600 (“Although the trial judge repeatedly told the jury that he 

was present only in an advisory capacity, and that the determination of the verdict was 

solely in its hands, and in spite of a fair charge to the jury further emphasizing such 

statements at the conclusion of the hearing, we are of the opinion that the effect of his 

observations and conduct of the proceeding was too vitiating and prejudicial to 

defendants’ rights to be thereby corrected.”).

C. REMEDY

When the issue is preserved and a reviewing court determines that a judge has 

pierced the veil of judicial impartiality, a structural error has been established that 

requires reversing the judgment and remanding the case for a new trial. Fulminante, 499 

US at 309-310 (recognizing the deprivation of the right to an impartial judge as a 

structural error and explaining that “[t]he entire conduct of the trial from beginning to end 

is obviously affected . . . by the presence on the bench of a judge who is not impartial”); 

Rose v Clark, 478 US 570, 577; 106 S Ct 3101; 92 L Ed 2d 460 (1986) (“Despite the 

strong interests that support the harmless-error doctrine, . . . some constitutional errors
16

[including adjudication by a biased judge] require reversal without regard to the evidence 

in the particular case.”); Chapman v California, 386 US 18, 23 & n 8; 87 S Ct 824; 17 L 

Ed 2d 705 (1967), citing Tumey v Ohio, 273 US 510; 47 S Ct 437; 71 L Ed 749 (1927); 

People v Anderson (After Remand), 446 Mich 392, 404-405; 521 NW2d 538 (1994) 

(recognizing the deprivation of the right to an impartial judge as a structural error). 

Judicial bias creates a “structural defect[] in the constitution of the trial mechanism, 

which def[ies] analysis by ‘harmless-error’ standards.” Fulminante, 499 US at 309-310 

(stating further that judicial partiality is a “defect affecting the framework within which 

the trial proceeds, rather than simply an error in the trial process itself”); Rose, 478 US at 

578 (“Harmless-error analysis . . . presupposes a trial, at which the defendant, represented 

by counsel, may present evidence and argument before an impartial judge and jury.”). 

The right to an impartial judge is so fundamental that “ ‘without [this] basic protection[], 

a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or 

innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” 

Fulminante, 499 US at 310, quoting Rose, 478 US at 577-578.5

 Such structural error 

requires reversal without regard to the evidence in a particular case. Chapman, 386 US at 

23 & n 8, citing Tumey, 273 US 510; Wallace v Bell, 387 F Supp 2d 728, 738 (ED Mich, 

2005) (“Certainly, the trial record confirms the state court’s finding that the prosecution’s 

case was strong; but once the court determined that the trial judge’s actions exhibited 

 5 The same is true of judicial bias which infects a civil proceeding. Marshall v Jerrico, 

Inc, 446 US 238, 242; 100 S Ct 1610; 64 L Ed 2d 182 (1980) (“The Due Process Clause 

entitles a person to an impartial and disinterested tribunal in both civil and criminal 

cases.”).
17

bias, reversal and a new trial is the only permissible consequence.”). Accordingly, 

judicial partiality can never be held to be harmless and, therefore, is never subject to 

harmless-error review. Fulminante, 499 US at 309-310, citing Tumey, 273 US 510. The 

conviction must be reversed “even if no particular prejudice is shown and even if the 

defendant was clearly guilty.” Chapman, 386 US at 43 (Stewart, J., concurring). To this 

extent, we overrule People v Weathersby, 204 Mich App 98; 514 NW2d 493 (1994), and 

all other cases applying harmless-error analysis to questions of judicial partiality.

In this case, as detailed in Part IV of this opinion, defense counsel objected on 

multiple occasions to the judicial questioning of defendant’s expert witness. We 

therefore conclude that the issue is preserved and harmless-error review is inapplicable.

6

IV. APPLICATION

Having clarified the appropriate standard by which to review a claim of judicial 

partiality, we now apply that standard to the facts of this case. We review the trial 

judge’s conduct according to the five factors delineated in our standard, taking care to

note that consideration of additional factors may be necessary and appropriate in other

cases.

 6 The Court of Appeals majority concluded that defendant “failed to preserve all, but one,

of his claims” and therefore applied plain-error review to the judicial questioning of 

defendant’s expert. Stevens (opinion of the Court), unpub op at 2-5. The Court of 

Appeals dissent, however, detailed several instances in which defense counsel objected to 

the judge’s questioning of the expert and also noted that further objection “would have 

been futile,” given that the trial judge clearly indicated to counsel that he considered all 

the court’s questions appropriate. Stevens (SERVITTO, J., dissenting), unpub op at 2-7. 

After reviewing the record, we agree with the dissent that defense counsel objected 

repeatedly and comprehensively to the judge’s questioning of defendant’s expert, and 

therefore find the issue preserved and plain-error review inapplicable.
18

A. NATURE OF THE JUDICIAL INTERVENTION

We first consider the nature of the judicial conduct. Defendant argues that the trial 

judge’s questioning of defense witnesses demonstrated partiality.

In particular, defendant challenges the trial judge’s repeated questioning of 

defendant’s expert, Dr. Shuman, to which defense counsel objected vigorously at trial. 

Early in his direct examination, Shuman testified, “I think you heard testimony that the 

brain sloshes around. The brain doesn’t slosh around. It would be like trying to scramble 

an egg by shaking it.” The judge then stepped in:

The Court: Would you be surprised if I told you that an expert didn’t 

testify in this case that [an] infant’s brain was sloshing around like an egg?

[Dr. Shuman]: I saw Dr. Mohr’s testimony, she said the brain 

sloshed around.

The Court: Okay, so you think because one pediatrician said that . . . 

that’s just your opinion, correct?

[Dr. Shuman]: I’m just trying to educate the jury on that’s not how it 

works.

The Court: Okay. And now, you would agree with me that other 

pathologists might have very different views than your[s] . . . correct?

This conduct is problematic for several reasons. First, the judge undermined 

Shuman’s testimony by suggesting that another witness offered contradictory testimony. 

Second, in emphasizing that Shuman’s testimony was only his opinion and contrasting it 

with the opinion of other pathologists, the judge undermined the substance of Shuman’s 

testimony as well as his overall credibility. Third, the phrase “you would agree with me” 

implies that the judge had his own opinion on whom to credit. In this way, the judge laid 
19

“undue stress upon particular features of a witness’ testimony that might, in the eyes of 

the jury, tend to impeach him.” Simpson, 328 Mich at 564.

Almost immediately following this exchange, the judge questioned why Shuman 

had traveled a great distance to testify for defendant:

The Court: I have another question for you. Have you ever traveled 

so far to testify?

[Dr. Shuman]: Yes.

The Court: Okay, how often and how far did you go?

[Dr. Shuman]: Well, I’ve testified in --

Defense counsel then asked to approach, but the judge denied the request, to 

which counsel responded:

Well, your Honor, just for the record I believe that that particular 

question is inappropriate. I -- it’s clear that this is a court appointed 

medical examiner. The fact that he traveled from Florida to Michigan has 

absolutely no bearing in this case.

We agree with defense counsel that this question was inappropriate. The inquiry

insinuated that Shuman traveled unusually far just to testify for defendant, arousing 

suspicion about his motives or why defendant could not procure a local expert to 

substantiate his defense.

Moreover, just thereafter, the judge targeted Shuman’s qualifications:

The Court: But, Dr. Shuman, as I understand it, you’re an assistant 

pathologist, correct, you’re not -- not the pathologist at Dade County are 

you?
20

Defense counsel objected, noting that the court had already endorsed Shuman as an 

expert. The judge replied, “Mr. Kirkpatrick, if I have a question I can ask a question, all 

right?” The judge continued:

The Court: Okay, and all things being equal do you think a head 

pathologist is more qualified to testify by way of experience or do you 

think an assistant pathologist is more qualified to testify by way of 

experience?

[Dr. Shuman]: I -- I wouldn’t make that determination based on just 

being a head versus an assistant.

The Court: Okay. All things being equal, would you agree with me 

that -- that generally head pathologists reach the top of their profession 

because they have the most experience or the least experience?

[Dr. Shuman]: Well no, no. I mean, it -- I know pathologists that are 

head pathologists that have less experience than I do.

The Court: Okay, does your head pathologist of Dade County have 

more or less experience than you do?

[Dr. Shuman]: He has more.

The Court: He has what?

[Dr. Shuman]: He has more but I’ve trained pathologists who are 

head pathologists in other areas.

Nothing about this inquiry clarifies unclear testimony or aids the jury in 

understanding complex or additional pertinent information. Rather, the judge again

interjected himself into direct examination and engaged in pointed cross-examination that

targeted the witness’s credentials, thereby invading the prosecutor’s role. The questions

were intimidating and argumentative, so much so that the witness was put on the 

defensive to vouch for his own qualifications. Especially given that the judge had 

already endorsed Shuman as an expert, extensive questioning about Shuman’s motives 
21

and qualifications fell outside the bounds of permissive judicial conduct. See Cole, 349 

Mich at 199-200. Furthermore, the judge’s response to defense counsel’s objection 

seemed to reflect an erroneous belief that his power to question had no limitations.

Finally, the trial judge questioned Shuman about the basis for his medical 

conclusions in this case. During direct examination, the judge asked Shuman if it was 

critical to look at all the investigative reports when performing an autopsy. Then, during 

cross-examination, after Shuman stated that he had not viewed the reports in this 

particular case, the judge interrupted the prosecutor:

Why didn’t you do that in this case then? Why didn’t you ask to get 

the police reports or talk to Detective Boulter? If that was important in that 

short fall case . . . why didn’t you do it in this one?[7]

In doing so, the judge again improperly invaded the prosecutor’s role. See Cole, 349 

Mich at 196. The questions suggested that Shuman was not thorough in his analysis and 

therefore his conclusions should not be trusted. It is also notable that the judge 

intervened in the middle of the prosecution’s line of cross-examination, challenging the 

witness himself rather than allowing the prosecutor to do so. Thus, on numerous 

occasions, the trial judge intervened in a manner that exceeded the scope of permissive 

judicial questioning. As a result, this factor weighs in favor of finding it reasonably 

likely that the judge improperly influenced the jury by creating the appearance of 

advocacy or partiality against defendant.

 7 The judge later added, “I mean, is it any -- when you’re going to rule out any suspicious 

death isn’t looking at the police reports a critical part of determining the forensic aspect 

of pathology?”
22

Defendant also takes issue with judicial questioning that occurred during the direct 

examination of defendant himself. While the judge’s questioning of defendant’s expert 

alone was sufficient to pierce the veil, we note that the judge’s hostile questioning of 

defendant contributed to the overall appearance of advocacy or partiality. Immediately 

after defendant testified that he tripped over the toy truck, the judge intervened:

The Court: Okay. Why did you pick this alleged truck up and not 

put it in the toy box, as I recall your testimony, was somewhere in the -- in 

the bedroom, you said you took it?

* * *

The Court: . . . [W]hat happened to the truck that you allegedly 

tripped and lost your balance on?

[Defendant]: I -- I left it there. I didn’t move it.

The Court: So you left it on the floor. Would it have been there when 

Detective Boulter came in and did a physical inspection?

[Defendant]: I believe so, unless it was cleaned up beforehand, I 

don’t know.

We note that this interjection occurred early in defense counsel’s direct 

examination of defendant, before counsel could thoroughly develop the testimony and 

before the prosecutor had the opportunity to challenge the validity of defendant’s version 

of events. Instead, the judge himself intervened and quickly seemed to question 

defendant’s explanation. While the use of the words “alleged” and “allegedly” can be 

interpreted in multiple ways,8 the context of the judge’s question—and especially the fact 

 8 For instance, a judge who consistently uses the word “allegedly” when referring at trial 

to a contested fact question, regardless of which witness is testifying, may not be 

exhibiting bias but instead may be deferring to the judgment of the factfinder in resolving 
23

that the judge never used these words in his interaction with any other witnesses—

suggests the judge’s disbelief in the defendant’s testimony. These questions did not 

clarify a confusing point or elicit additional relevant information. Rather, the questions 

inappropriately exhibited disbelief of the defendant. See Young, 364 Mich at 558. The 

fact that the judge intervened in this manner before the prosecutor’s cross-examination is 

even further indication that the judge improperly invaded the prosecutor’s role. See id. 

Even if this exchange, on its own and in a different context, would not raise questions of 

impartiality, this exchange provides further support for defendant’s claim of judicial bias.

B. TONE AND DEMEANOR

We also consider the tone and demeanor the judge displayed in front of the jury. 

It will often be the case that analysis under this factor will dovetail with analysis of the 

nature and type of judicial conduct; the manner in which the judge’s inquiry is made will 

affect how the jury perceives the conduct. To the extent that it is appropriate, these 

factors may be considered together.

As noted earlier, in several instances the very words and sequence of questions 

employed by this judge projected incredulity, bias, and hostility. For example, the 

judge’s use of the phrase “that’s just your opinion” when questioning Shuman obviously 

indicated the judge’s personal disbelief of the witness and encouraged the jury to 

disregard Shuman’s professional opinion. When questioning Shuman about why he had 

not reviewed the police reports, the judge asked three questions in immediate succession 

 

that question. As always, the proper interpretation depends on the context of the 

interactions.
24

without giving the witness the chance to respond, indicating aggression and antagonism. 

Additionally, at several points, the judge engaged in prosecutorial cross-examination of 

Shuman, further highlighting the biased nature of the intervention. An objection by 

defense counsel made outside of the presence of the jury further elucidates the 

atmosphere pervading the courtroom:

Your Honor, with all due respect, I’d like to make a record. This is 

my expert witness and I take exception and object. I understand the Court 

has the ability to ask questions of an expert but I believe it is objectionable 

and I believe that it crosses the line when it appears as though the Judge, 

who is the impartial overseer of this trial, is cross-examining my expert as 

if you are the prosecuting attorney. Because that sends a message to the 

jurors to immediately disregard what he’s saying.

And I’m getting that feel, your Honor, and if I’m getting that feel I 

believe the jury’s getting that feel. You’re aggressively asking him 

questions, you are downgrading the fact that he’s got to travel across this 

country, you’re insinuating to the jury that he’s coming -- we couldn’t find 

somebody in Detroit or Flint, we got to bring somebody all the way from 

Florida, you’re destroying his credibility in front of the jury before they 

even have an opportunity to hear him fully testify. And I take -- and I 

object to it. I think it’s improper.

This objection highlights the judge’s inappropriate manner. Additionally, the judge 

unquestionably displayed hostility toward defense counsel when he responded to another

objection with, “Mr. Kirkpatrick, if I have a question I can ask a question, all right?” 

Finally, the judge’s use of the words “alleged” and “allegedly” when questioning 

defendant clearly indicated that the judge doubted defendant’s testimony. While 

evidence of the judge’s tone and demeanor may not be on the record in many claims of 

judicial bias, when it does appear, it provides further information to determine whether a 

defendant is entitled to a new trial. There is such evidence in this case. Therefore, this 
25

factor also weighs in favor of holding that the judge improperly created an appearance of 

bias against defendant.

C. SCOPE OF THE CONDUCT IN LIGHT OF THE TRIAL’S COMPLEXITY

Next, we consider the scope of the judicial conduct in the context of the length and 

complexity of the trial, as well as the complexity of the issues therein. This was an eightday murder and child-abuse trial involving testimony from several medical experts. 

Despite the presence of multiple expert witnesses, a review of the record confirms that 

the complexity of the issues presented did not warrant the extent of the judicial 

intervention that occurred.9

 The testimony from the medical experts did conflict over 

whether Kian’s injuries pointed toward homicide as the cause of death or instead could 

support defendant’s claim that he accidentally dropped Kian. However, both counsel

fully developed the differing expert viewpoints in clear, understandable fashion. It was 

well within the capacity of the jurors to weigh the relatively straightforward testimony to 

determine the cause of death without judicial intervention. Therefore, the information 

presented in this trial did not warrant the degree to which the trial judge intervened.

D. DIRECTION OF INTERVENTION

In tandem with assessing the judge’s conduct in light of the trial’s length and 

complexity, it is also important to consider whether this intervention was directed toward 

a particular party, so as to distinguish excessive but ultimately neutral questioning from 

biased judicial questioning. A review of the record here indicates that the judge’s 

 9 As acknowledged by the prosecutor in his closing argument, “This is not a difficult case 

as far as [the] evidence . . . .”
26

questioning was directed against the defendant and in favor of the prosecution. First, we 

note that the questions were imbalanced in number: the judge questioned defendant’s

witnesses far more extensively than the prosecution’s witnesses.

10 Furthermore, when 

the judge did ask questions of a prosecution witness, the inquiry often appeared to be 

designed to further weaken defendant’s case. For instance, the judge asked several 

questions of Anderson related to past incidents of domestic violence with defendant. The 

judge then asked the prosecution’s expert on domestic violence, “[W]hy is it sometimes 

difficult for women to extricate [themselves] or leave situations, even potentially when 

their children could be at risk?” Thus, the judge seemed to be using two of the 

prosecution’s witnesses in tandem to tarnish defendant in the eyes of the jury. Likewise, 

when the prosecution called Dr. Jentzen as a rebuttal witness, the judge asked:

Okay, Doctor, as forensic pathologist, and I guess an anatomical one 

as well, why is it important [i]f a death is either suspicious or suspected to 

be a homicide, why is it important to you that you review the police reports 

and have access to the detective and access, as an example, to any 

supplemental breaking reports in the investigation?

The judge also asked Jentzen to reiterate that he was a head medical examiner, not 

an assistant. Following immediately on the heels of the judge’s criticism of Shuman,

these questions used Jentzen’s rebuttal testimony to further undermine Shuman’s 

credibility. Thus, even when questioning the prosecution’s witnesses, the judge in fact 

 10 In addition to Anderson, Dr. Mohr, and Dr. Jentzen, the prosecution called two police 

detectives, two public safety officers, an expert on domestic violence, Anderson’s stepmother, and defendant’s ex-girlfriend. Of several witnesses, the judge did not ask any 

questions at all. Of the two officers, the judge asked a few clarifying questions about the 

timing of an interview and the process of making a police report.
27

adversely targeted defendant’s case. In contrast to the aggressive, undermining judicial 

examination of defendant and Shuman, no prosecutorial witness was subject to such 

hostile intervention. In other words, not only was judicial questioning imbalanced in 

number but also in style. Accordingly, this factor also weighs in favor of holding that the 

judge pierced the veil of judicial impartiality.

E. CURATIVE INSTRUCTIONS

Finally, we consider the presence or absence of curative instructions. At the close 

of trial, the judge provided the jury with general curative instructions to the effect that his 

questions and comments were not evidence, any judicial intervention was not meant to 

reflect a personal opinion, and the jury could only decide the case on the basis of the 

evidence. Because “jurors are presumed to follow their instructions,” Graves, 458 Mich 

at 486, the presence of a curative instruction does tend to cut against a finding of judicial 

bias. Despite this presumption, however, we note that a single, general instruction may 

not alleviate substantial judicial bias when judicial questioning of one party is excessive

and imbalanced, as it was here. See In re Parkside Housing Project, 290 Mich at 599-

600; Bigge, 297 Mich at 70-72. Although the presence of a proper curative instruction 

weighs against the conclusion that the judge’s conduct pierced the veil and deprived 

defendant of a fair trial, the totality-of-the-circumstances test requires that this factor be 

considered alongside the others.

V. CONCLUSION

In this case involving a preserved claim of structural error, considering the totality 

of the circumstances, we conclude that it is reasonably likely that the judge’s conduct 
28

with respect to defendant’s expert witness improperly influenced the jury by creating the 

appearance of advocacy or partiality against defendant.

11 The nature of the judicial 

conduct, the judge’s tone and demeanor, and the direction of the judge’s questions in 

light of the trial’s complexity all indicate that the judge exhibited judicial bias in the 

presence of the jury. Although the judge gave a curative instruction to the jury, this 

instruction was not enough to overcome the bias the judge exhibited against the defense 

throughout the trial. Consequently, we reverse the judgment of the Court of Appeals and 

remand for a new trial before a different judge.

Richard H. Bernstein

Robert P. Young, Jr.

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

 11 Because we decide this case on the grounds of judicial partiality, we decline to address 

the other issues raised by defendant on appeal.