Sat. Mar 25th, 2023

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves



But as the public may talk about recusal when it is discussed in major news stories, many don’t understand what the term actually means or the greater implications it has on the judicial system. Here’s why someone may recuse themselves from a case and what happens if someone who should have recused themselves didn’t do so.

What Does Recuse Mean in Law?

A recusal occurs when a judge or prosecutor would would have normally taken a case does not participate in it. This can happen if they are removed from the case due to a motion on behalf of an attorney or due to the individual’s decision. Recusals usually take place due to a conflict of interest of some type that will result in the judge or prosecutor being too biased to fairly participate in the case. Some of the top reasons a recusal may take place include:

  • Bias or prejudice concerning the party or their attorney. If a judge or prosecutor has a bias or prejudice against the defendant or their defense attorney, then they cannot take the case. Simply trying a case involving the person or their lawyer in the past isn’t enough, there must be evidence there is actual bias or prejudice preventing them from acting fairly in the trial.
  • A personal relationship to the party or their attorney. Alternatively, if the judge or prosecutor has a personal relationship to either the defendant or their lawyer, they cannot be expected to be fair, it doesn’t matter if this means the defendant is a loved one or a neighbor the judge or prosecutor sued in the past, if the two have a relationship beyond a simple acquaintance (just being friends on Facebook isn’t enough), the judge or prosecutor needs to recuse themselves.
  • An economic interest in the case. While this is more commonly a problem for judges handling civil cases, it can still affect criminal ones as well. For example, if the prosecutor’s wife holds a lot of stock in a company being tried for fraud (which would likely result in the stock plummeting if the company is found guilty), he might be, or at least seem, less likely to try very hard to prove the company’s guilt, which is why he would be expected to recuse himself in such a case.
  • A judge’s personal knowledge of disputed facts. This is less of a problem for prosecutors, but often there is evidence uncovered during the investigation of a case that is not actually admitted in the factual record of the case or that conflicts with the evidence presented in court. If a judge knows about such evidence, it could stop her from being impartial and she should recuse herself. Similarly, if a judge was the prosecutor in a case years ago that is later appealed, she could not judge the appeal.

What Happens if Someone Refuses to Recuse Themselves

Most judges and prosecutors will automatically recuse themselves if they feel there is a conflict of interest. If they do not, the defendant’s criminal attorney can file a motion to have the either judge or prosecutor recused from the case and the prosecutor can file one to have the judge recused. The judge may then determine if the prosecutor should be recused and will also make the determination about whether or not he should be recused if it was against him. If he decides he should not be recused, the side that filed the motion can then be able to have the motion heard by a higher judge.

If it is discovered after the fact that the judge or prosecutor should have recused themselves and did not, the case can be appealed and the court may order a new trial. The judge or prosecutor may also face disciplinary measures, which could even include disbarment.

When Defense Lawyers Have Conflicts of Interest

It’s worth knowing that defense lawyers can be conflicted on cases but it is not the same as recusal. The usual grounds are that a defense lawyer shouldn’t represent more than one defendant on a case. Another conflict is the defense lawyer has previously represented a co-defendant or a witness in the case.

Anyone who believes their motion to recuse a judge or prosecutor was improperly denied should tell their lawyer and be sure to include all relevant details regarding why they believe the judge or prosecutor should recuse themselves.