Recusal of Prosecutor – California Criminal Motions § 1:9 – Pen. Code, § 1424

1:9. Recusal of prosecutor, California Criminal Motions § 1:9

California Criminal Motions § 1:9

California Criminal Motions | September 2022 Update

Chapter 1. Arraignment/Bail/First Appearance

1. Defense Motions

• 1:9. Recusal of prosecutor

Correlation Table

California Criminal Motions § 1:9

California Criminal Motions | September 2022 Update

Chapter 1. Arraignment/Bail/First Appearance

1. Defense Motions

• 1:9. Recusal of prosecutor

Correlation Table

Practice notes:

Although not quite as severe as the “nuclear option” of disqualifying a judge for actual prejudice under the Civ. Proc. Code, § 170.1, a motion to recuse the prosecution in a case is still very strong medicine which should rarely be used. “Disqualification of an entire prosecutorial office from a case is disfavored by the courts, absent a substantial reason related to the proper administration of justice.”¹

A successful motion to recuse the prosecution could result in a specific district or city attorney being disqualified from a case or it could cause a specific individual prosecutor being taken off the case. If an entire office is recused, the California Attorney General’s Office is given discretion to represent the prosecution’s interests in the case.

The “threshold necessary for recusing an entire office is higher than that for an individual prosecutor. [Citation.] If a defendant seeks to recuse an entire office, the record must demonstrate ‘that the conduct of any deputy district attorney assigned to the case, or of the office as a whole, would likely be influenced by the personal interest of the district attorney or an employee.”²

In California, recusal of the prosecution is governed by Pen. Code, § 1424. There are two sets of requirements, procedural and substantive.

The procedural requirements include that the motion to recuse a District Attorney must be filed and served on the District Attorney and the California Attorney General’s Office at least 10 days before the motion is heard;³ if the recusal motion is to disqualify the City Attorney, 10 days’ notice must be given on the City Attorney and the District Attorney.⁴ The motion must also set forth the relevant facts and the legal authority supporting the motion.⁵

The substantive requirements are the grounds upon which a recusal motion can be granted. As specified by Pen. Code, § 1424(a)(1) for recusal of District Attorneys, and Pen. Code, § 1424(b)(1) for recusals of City Attorneys, a recusal will only be granted if “the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.”

In essence, there are two substantive elements that must be met to recuse the prosecution: (1) It must be shown that there is a conflict of interest, and (2) that such a conflict would render it unlikely that the defendant would receive a fair trial. As explained by the Court of Appeal in Lewis v. Superior Court,⁶

[T]he first element may consist of either actual or apparent conflict. If such a conflict is found, the court must determine the second issue: was the conflict so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings? While it is conceivable that an appearance of conflict could signal the existence of an actual conflict which, although prejudicial to the defendant, might be extremely difficult to prove, the second statutory requirement (that a conflict exist such as would render it unlikely that the defendant would receive a fair trial) renders the distinction between ‘actual’ and ‘appearance’ of conflict less crucial.

Pen. Code, § 1424, “does not allow disqualification because participation of the prosecutor would be unseemly, appear improper, or even reduce public confidence in the criminal justice system. An actual likelihood of prejudice to defendant must be shown … Recusal cannot be warranted solely by how a case may appear to the public.”⁷

A “conflict” exists when, “the circumstances of a case evidence a reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.”⁸ “The prosecutorial discretion goes beyond the decision of what charges to file and the trial itself; it extends to all portions of the proceedings.”⁹

The typical case where recusal will be granted is when the prosecution itself is the victim in one of the crimes alleged in an information. For example, in Millsap v. Superior Court,¹⁰ it was held that recusal should have been granted of two specific prosecutors when the defendant was charged with, among other things, soliciting the murder of the two deputy district attorneys.

In People v. Conner,¹¹ recusal of the entire district attorney’s office was required when a deputy district attorney who was employed in that office was both a witness to, and arguably a victim of, the criminal conduct giving rise to the offenses for which defendant was being prosecuted.

The district attorney is not automatically subject to recusal simply because a victim assisted the district attorney with investigation of the case.¹² In order to get a recusal motion granted in the situation, the defendant must show, among other things, that the financial assistance was of “a nature and magnitude likely to put the prosecutor’s discretionary decisionmaking within the influence or control of an interested party.”¹³

Pen. Code, § 1424 provides that, after briefing on a recusal motion, the trial court “shall review the affidavits and determine whether or not an evidentiary hearing is necessary.” A trial court in its discretion may deem a hearing necessary “even if the movant has not established the existence of disputed issues of material fact that cannot be resolved through the use of affidavits alone.”¹⁴ However, “at a minimum, in order to establish an abuse of discretion in the denial of a hearing, the moving party must show that it submitted affidavits to establish a prima facie case for disqualification.”¹⁵

• Laurie L. Levenson, California Criminal Procedure, § 1:8 (West 2010)
• California Criminal Practice and Procedure, § 18:26, et seq. (CEB, Ed. 2010)
• Westlaw. © 2022 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Learn More here California Code, Penal Code – PEN § 1424