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What is Recusal?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 02 November 2016
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Recusal is the dismissal of a judge, attorney, or juror in a case when there are concerns that this person would not be able to participate fairly. This article focuses on judicial recusal, where a judge steps down from a case or is ordered to do so, depending on the circumstances. This is a safeguard within the legal system to prevent people with bias or interest in a case from playing a role in its outcome; a judge could not, for example, preside over a drunk driving case involving her son.

There are two methods for judicial recusal. In some cases, a judge may recuse himself. Judges cannot arbitrarily decide they do not want to serve on given cases and must provide a reason for asking not to serve. Judges with a financial or personal interest in a case could argue they have a conflict of interest, for example. Judges in higher courts like the Supreme Court may have participated in lower court cases and thus would not be fair parties to a higher court case. Notably, several Supreme Court justices have recused themselves from cases where their children are bringing the case to the court, an example of legal dynasties in action.

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If a judge does not voluntarily step down, it may be possible to file a motion for recusal. This is more common in the lower courts, and in some nations, people cannot file motions to dismiss high court judges. In this situation, one of the parties to the case requests a recusal or reassignment because there is a concern about the judge's ability to handle the matter fairly.

A black defendant, for instance, could request a different judge if the assigned judge has made racist comments outside of court, on the grounds that the judge would have a bias against the defendant. Likewise, a plaintiff in a lawsuit against a public company could ask the judge to step down because she holds shares in the company and would have a bias in favor of the respondent.

When a judicial recusal takes place, the court may assign a new judge to the case or allow it to move forward with fewer than the usual number of judges in the case of a panel like the Supreme Court. If recusals due to conflicts of interest become a very common problem, a judge may be reassigned to a court in another region to eliminate this issue. This can occur in small communities where judges end up knowing everyone and developing a number of close personal connections.

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