She Doesn’t Like Me: Judicial Recusal

Judges in a criminal or civil proceeding are constitutionally bound to act impartially to all parties involved in a legal dispute. This concept is memorialized in the United States Constitution, through the 6th Amendment, and also in every State Constitution. It applies to all participants whether they are one of the attorneys involved, a criminal defendant, a civil defendant, or a plaintiff seeking some type of financial award. There are two types of trials, jury and bench trials (also called “waiver trials”). While the issue of judicial disqualification often arises in bench trials it can still be an issue in a jury trial.

Judges are the evaluators of the law and often make rulings which could influence a jury’s evaluation of the facts. In Pennsylvania, the judicial code of conduct requires that a judge recuse himself/ herself whenever he/she believes that their impartiality can be reasonably questioned by a higher Court. A judge’s impartiality is called into question whenever he/she may have doubts as to his/her ability to preside objectively and fairly over a matter before them.

In some cases, judges recuse themselves, “sua sponte” based on their own internal review of the facts, parties, the relationship to both, and their ability to objectively make decisions without later being questioned. These “sua sponte” instances happen more and more as our society has access to a great deal of information about the affairs of others often in the palm of our hands through mobile devices utilizing social media. These devices and social sites are interactive and allow us to comment on very controversial issues and inject ourselves into matters. This is just one example of an issue which could create a biased and many judges often refrain from commenting publicly, informally or formally, on any matter could remotely come before them later.
In cases where judges do not disqualify themselves, a party seeking to remove a judge based on bias bears the burden of producing evidence to establish that bias, prejudice, or unfairness which necessitates recusal. This is a very fine line for attorney’s as it is obviously important to respect a judge’s authority but at the same time aggressively advocate for their client’s constitutional right to a fair and impartial hearing.

Parties often make motions for recusal based on a judge’s possible relationship to one of the attorneys, the parties, and even the specific facts of the case of which the judge may have prior knowledge or may have already passed some sort of judgment informally. Parties may also make motions after inflammatory statements or evidence is presented which is later found to be inadmissible during a trial. Inflammatory evidence consists of an accused prior record, or character which is often inadmissible unless offered by the accused at trial.

Judicial recusal is an extremely important concept and should not be overlooked. Failure to address it before or during trial could result in a waiver of the issue on appeal. It is important therefore that your attorney explores this issue and immediately makes a motion if it is appropriate. Even if a judge refuses to recuse himself, a higher court can still reverse an unfavorable decision and/or grant the party a new trial followed. Judges are human and we are all influenced by past experiences. These past experiences, however, must never deprive a person of their rights under the law. It is one of our most basic rights under the law!