In a court, the highest authority present is the presiding judge. While they do not fully decide the guilt or innocence of a defendant, they still play an important role in ensuring that the trial proceeds without irregularities. They interpret the law in relation to the case, and maintain order in the courtroom so that justice can be enacted swiftly and without obstruction.
All of that goes out the window if it turns out that the judge handling a hearing is somehow related to a case. If you’re in court for a criminal charge in Las Vegas and you end up in this situation, the verdict you will receive may come into question. Thankfully, there are some instances where you can have the judge recuse from your trial.
What’s a Recusal?
A recusal is an action where a judge, prosecutor or juror forfeits participation in a criminal case because of a possible conflict of interest. The rules and principles fall under Title 28 of the Judicial Code, and is one of the underlying principles of jurisprudence regarding impartiality.
In most cases, recusal is done when external evidence reveals a possible conflict of interest with the party in question. This is called the ‘extrajudicial source’ rule. However, there are instances where the party in question will excuse themselves on their own if a conflict arises. This is what is known in legal terms as a motion sua sponte (on their own motion).
When a Recusal can Happen
There are several instances where a judge will have to recuse from a case. Three of the most common cases are listed below.
- Prejudice for or against one of the parties to the case: The judge overseeing the case has pre-held biases for or against one of the parties involved in the hearing. This removes any impartiality in the judge and automatically puts any decisions into question.
- Relation to the parties or their attorneys up to the third degree: A judge cannot oversee a case if they are relatives in blood or in law with any of the parties involved, or their legal counsels. The thrice-removed stipulation ensures that no loopholes can be used to have a favorable verdict due to familial connections.
- Previous legal relationship: The judge served as counsel for one of the parties involved in the current case. In some situations, even counting as being previously employed as a family lawyer may count.
How The Process Works
As stated earlier, judges can choose to recuse themselves from a case if a possible relation is exposed or implied. However, any of the parties involved can file an affidavit stating why the judge should be recused from the case. The party’s legal counsel must also attach a certification that the filing is in good faith and not meant to derail the trial. The affidavit can only be filed 20 days before the first hearing, or 3 days before the pretrial hearing.
Once the judge in question receives a copy of the affidavit, they can file a response with the clerk no less than five days after it was submitted. The decision of whether or not the recusal should proceed falls to a third party judge that both parties agree on. However, if the recusal affidavit concerns a judge in the Supreme Court, a hearing involving all the other Supreme Court justices will take place to discuss the matter.
Recusal is an important legal remedy against a possible miscarriage of justice. Talk with your Las Vegas defense attorney to better understand how a recusal can affect your case.