Vista DUI Lawyer and Criminal Attorney Peter M. Liss

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Why Judges or Attorneys Must Sometimes Recuse Themselves

June 14, 2019 Written by Jill Harness and Edited by Peter Liss Last Updated on July 2, 2023

when should a lawyer 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 means or its greater implications 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.

What Does Recuse Mean in Law?

A recusal occurs when a judge or prosecutor who 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 occur due to a conflict of interest that will result in the judge or prosecutor being too biased to participate fairly 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, 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 actual bias or prejudice is 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 connection 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 superficial acquaintance (just being friends on Facebook isn’t enough), the judge or prosecutor needs to recuse themselves.
  • Economic interest in the case. While this is more commonly a problem for judges handling civil cases, it can also affect criminal ones. 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 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 determine 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 is then 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, including 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 think the judge or prosecutor should recuse themselves. You can schedule a free initial consultation with Peter M. Liss by calling (760) 643-4050 or (858) 486-3024.

Filed Under: CRIMINAL DEFENSE, The CA Legal System, FAQs, LEGAL PROCEDURES Tagged With: prosecutors, recusing, recuse, prosecutorial misconduct, prosecutor misconduct, misconduct, lawyers, judges

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I have been practicing law for over 35 years, and opened my own law firm in 1998, after serving as Assistant Supervising Public Defender for the Vista Public Defender’s Office. I have defended many high profile cases in my career, fighting charges ranging from drunk driving to capital murder.

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Attorney Peter M. Liss,
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About the Legal Information on This Website

I rely on my experience as a top defense lawyer in my area to personally review all information on this site; however the information offered here should not substitute as legal advice. If you have been arrested or charged with a crime in Vista, please contact a qualified defense attorney.