Criminal Law

Disqualifying a Judge from a Criminal Case

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A judge may be disqualified from a case if he has a conflict of interest or if his continuing participation in the case seems unfair. A judge has a duty to identify the existence of recusal grounds. Recusal is the disqualification of a judge because of prejudice or conflict of interest.

A judge can be recused by objections from either party. Also, judges can disqualify themselves.

Specific conflicts of interest that require a judge be disqualified include:

  • A substantial financial interest in the case
  • Prior representation in private practice by the judge of a party with an interest in the case
  • A relative of the judge acting as a lawyer in the same case

Financial Interest

A judge must be disqualified when he has a financial interest in a case. Any corporate defendant must identify any parent corporation and any publicly held corporation that owns 10% or more of its stock.

Prior Representation

A conflict may arise in a criminal case when the judge previously served as a prosecutor in another case involving the defendant. This is especially true if the judge had some role, either active or supervisory, in the investigation or prosecution of the defendant.

Relative Acting as Lawyer

A judge must be disqualified from a case when a relative of the judge is acting as a lawyer in the same case.

Judge May Disqualify Self

A judge must disqualify himself in any case where his detachment might reasonably be questioned. The judge doesn't necessarily need to remove himself from the entire case. At times, a judge may need to be removed from just a part of the case. This would involve transferring authority to decide certain issues but keeping general control over the case.

Judge's Partiality Raised by Motion

Any party may raise the issue of a judge's partiality by motion. Also, the court may raise the issue of a judge's partiality on its own. The party seeking disqualification must raise the issue as soon as the facts suggesting the lack of the judge's impartiality become known.

The defendant can't wait until after an unfavorable result has been reached before he tries to have the judge removed. Sometimes the failure to seek recusal until after an unfavorable result has occurred is considered a waiver of disqualification of the judge, which is not reviewable on appeal.

Defendant May Waive Disqualification

The defendant may waive disqualification of the judge after a full disclosure of the basis for disqualification has been made. However, a defendant may not waive an actual conflict.

Appeal of Denial of Motion for Recusal

Generally the denial of a recusal motion may be appealed.

Questions for Your Attorney

  • When can a judge be disqualified from a case?
  • Does any amount of financial interest in a case on the part of a judge mean the judge must be disqualified?
  • How does a defendant waive disqualification of a judge?
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