203.1Recusal of Judge/Prosecutor
- Either party may move that the judge recuse him- or herself on the grounds of prejudice or conflict.
- The moving party bears the burden of proof.
- The defendant may also move to have the prosecutor recused from a case, but the court may grant such relief only upon an actual showing of conflict of interest.
Grounds for Motion to Recuse Judge
All parties are entitled to a fair trial, which requires that the judge overseeing the trial be completely impartial. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); Hope v. Charlotte-Mecklenburg Bd. of Educ., 110 N.C. App. 599 (1993). If either the state or the defendant believe that circumstances exist that would prevent the trial judge from carrying out his or her duties in an impartial manner, the party may move the court for recusal on the following grounds:
- Prejudiced against either party;
- Closely related by blood or marriage to the defendant;
- A witness for or against one of the parties in the case; or
- Unable to perform the duties required of him or her for any other reason.
2. Judicial Canon
Canon 3C.(1)(a) of the N.C. Code of Judicial Conduct provides that upon the motion of any party, a judge should disqualify himself or herself in a proceeding in which his or her impartiality may reasonably be questioned, including but not limited to instances where he or she has a personal bias or prejudice concerning a party. For other instances requiring disqualification, such as kinship or financial interest in the matter in controversy, see N.C. Code of Jud. Conduct, Canon 3C.(1)(b)–(d); State v. Scott, 343 N.C. 313 (1996) (trial judge did not err in hearing and denying recusal motion in murder case where defendant alleged that judge and defendant had been friends, that judge had expressed doubts about victim’s credibility in earlier case, and judge had relatives who worked as prosecutor and probation officer; judge attested that he had never discussed the case with either relative).
3. Due Process
Although it will apply “only in the most extreme of cases,” a party may also move for a judge’s recusal on due process grounds if one or more of the following circumstances exist:
- The judge has a direct, personal, and substantial pecuniary interest in the outcome of the case;
- The court is structured such that the judge may be tempted to impose a fine because the judge’s governmental entity would benefit (e.g., where judge was also the mayor, and imposing fines would benefit the town’s budget);
- The judge trying the criminal case was responsible for initially bringing the criminal charges, or in contempt cases where judge has a strong personal interest in the outcome; and/or
- One party has made a campaign contribution to the judge that was large enough to have likely affected the outcome, and knowing that the party’s case would come before that judge.
See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (key inquiry for due process analysis is whether there exists a “constitutionally intolerable probability of actual bias”); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) (allegations of judge’s bias based on “general frustration with insurance companies” were “insufficient to establish any constitutional violation”); Ward v. Monroeville, 409 U.S. 57 (1972) (finding due process violation where mayor also sat as judge hearing traffic violations, and thus stood to benefit financially from fines, costs, and fees collected in court).
Requirements and Evidence
A motion to disqualify a judge must be: (i) in writing; (ii) accompanied by a factual affidavit; and (iii) filed no less than five days before trial, unless the grounds for disqualification are not discovered until after that time or other good cause exists. See G.S. 15A-1223(c), (d); State v. Moffitt, 185 N.C. App. 308 (2007) (defendant failed to make motion in writing and failed to demonstrate grounds for disqualification).
Standing alone, “a mere allegation of bias or prejudice is inadequate to compel recusal.” State v. Moffitt, 185 N.C. App. 308 (2007). See State v. Kennedy, 110 N.C. App. 302, 305 (1993) (allegation that the judge’s wife had been seriously injured by an impaired driver, without more, did not show the requisite bias or prejudice and did not disqualify superior court judge from presiding over trial); State v. Honaker, 111 N.C. App. 216 (1993) (defendant who alleged that judge made biased comment, necessitating recusal, has burden of producing record or other evidence proving that judge made the remark and context of remark).
Instead, the party moving to disqualify a judge must “demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that the judge would be unable to rule impartially.” State v. Fie, 320 N.C. 626, 627 (1987); accord State v. Honaker, 111 N.C. App. 216 (1993); In re Nakell, 104 N.C. App. 638 (1991) (stating that where judge is embroiled in personal dispute with defendant, maintaining appearance of absolute impartiality and fairness may require judge to recuse himself).
Hearing and Burden of Proof
If the allegations in the motion to recuse are such that findings of facts will be required regarding the alleged basis of the judge’s bias or conflict, the judge should refer the matter to another judge to conduct the hearing. See N.C. Nat’l Bank v. Gillespie, 291 N.C. 303 (1976) (citing Ponder v. Davis, 233 N.C. 699 (1951)); but see State v. White, 129 N.C. App. 52 (1998) (judge who imposed probation condition that defendant challenged as unconstitutional was not required to recuse himself from probation revocation hearing), aff’d per curiam, 350 N.C. 302 (1999); State v. Monserrate, 125 N.C. App. 22 (1997) (no statutory requirement that judge who issues search warrant must recuse himself or herself regarding hearing challenging validity of warrant, although better practice is to do so).
As noted above, the standard for ordering recusal is whether there are reasonable grounds to question the judge’s objectivity. The judge is only required to order recusal (or refer the matter over to another judge to decide whether recusal is necessary) if a reasonable person, knowing all the facts, would have doubts about the judge’s ability to be impartial in the case. See State v. Vick, 341 N.C. 569 (1995); State v. Fie, 320 N.C. 626 (1987); State v. Poole, 305 N.C. 308 (1982); State v. Moffitt, 185 N.C. App. 308 (2007); State v. McRae, 163 N.C. App. 359 (2004).
- Examples – Recusal Warranted
- Judge has expressed, directly or indirectly, an opinion about the merits of the case. See State v. Hill, 45 N.C. App. 136 (1980) (judge previously heard defendant testify at another trial, stated that defendant implicated himself, and then increased the defendant’s bond); State v. Fie, 320 N.C. 626 (1987) (judge requested DA to file the pending charges against defendant based on testimony he gave at another trial).
- One of the parties has a pending lawsuit against the judge. See In re Braswell, 358 N.C. 721 (2004).
- Judge may not preside at same session of court where he or she has a pending traffic charge. See In re Martin, 302 N.C. 299 (1981); see also In re Nowell, 293 N.C. 235 (1977) (judge censured for disposing of his own tickets before opening court, and ordering clerk to enter a PJC in both cases).
- Where a lawyer’s complaint against judge has led to formal investigation of the judge (but not for a bare complaint, without more). See Judicial Standards Commission Formal Advisory Opinion 2014-02.
- Close business or family relationship with one of the attorneys. See Canon 3C of the N.C. Code of Judicial Conduct; but see also Lange v. Lange, 357 N.C. 645 (2003) (judge’s joint ownership of vacation property with attorney not a sufficient basis); In re Pedestrian Walkway Failure, 173 N.C. App. 237 (2005) (judge not disqualified by daughter’s clerkship at one party’s law firm, where she worked in different area and had no direct involvement in the case).
- Case involving a judge’s opponent in a judicial election (or else seek a written waiver of the disqualification). See “Permissible Political Conduct,” Judicial Standards Commission Memorandum to Members of the North Carolina Judiciary, March 24, 2014.
2. Examples – Recusal Not Warranted
- No disqualification just because judge is aware of the facts, or had prior involvement in the case, including ruling against a party. See State v. Moffitt, 185 N.C. App. 308 (2007) (judge not disqualified from resentencing on appeal, despite awareness of defendant’s prior rejection of plea deal); State v. McRae, 163 N.C. App. 359 (2004) (judge allowed to preside over competency hearing, after presiding over previous trial where defendant was found guilty); In re Faircloth, 153 N.C. App. 565 (2002) (judge not disqualified in termination of parental rights case, despite earlier ruling that parent was guilty of abuse and neglect); State v. Vega, 40 N.C. 326 (1979) (judge not disqualified from murder trial based on presiding over prior mistrial, which included a courtroom outburst).
- Judge’s efforts to push parties to settle case, and expression of dissatisfaction with the parties, does not mandate disqualification. See Dunn v. Canoy, 180 N.C. App. 30 (2006).
- Judge’s personal view that a certain type of crime is very serious is not disqualifying. See State v. Kennedy, 110 N.C. App. 302 (1993) (judge whose wife was seriously injured by a drunk driver allowed to preside over a DWI case).
- Senior judge not disqualified to hear removal proceedings against a magistrate, even though judge appointed that magistrate. See In re Ezell, 113 N.C. App. 388 (1994).
- Recusal not required in case in which the judge’s home county was a party in a condemnation proceeding. See County of Johnston v. City of Wilson, 136 N.C. App. 775 (2000).
Motion to Recuse Prosecutor
The defendant may also file a motion asking the court to order that a prosecuting attorney be disqualified from participating in the case; however, the defendant must demonstrate an actual conflict of interest to be entitled to relief, and that relief should be limited to only the individual prosecutor who has the conflict, not the entire district attorney’s office:
[A] prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists. In this context, an “actual conflict of interest[ ]” is demonstrated where a District Attorney or a member of his or her staff has previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant's detriment at trial. Even then, however, any order of disqualification ordinarily should be directed only to individual prosecutors who have been exposed to such information.
State v. Camacho, 329 N.C. 589 (1991). In Camacho, the court held that the trial judge did not err in denying the defendant’s motion to recuse the district attorney’s office from prosecuting the case because a former assistant public defender who subsequently joined the district attorney’s staff had been minimally involved in the defendant’s case. Id. A prosecutor may not be disqualified from prosecuting a criminal case unless the trial court determines that an actual conflict exists, such as a showing that the prosecutor has obtained confidential information which may be used to the defendant’s detriment at trial. Id.
Furthermore, any order of recusal should be directed to the individual prosecutor who has been exposed to such disqualifying information, not the district attorney's office as a whole. State v. Camacho, 329 N.C. 589 (1991); State v. Smith, 258 N.C. App. 682 (2018) (“trial court exceeded its lawful authority in ordering the recusal of the District Attorney for the 13th Judicial District and his entire staff”); State v. Anthony, 354 N.C. 372 (2001) (trial judge did not err in denying the defendant’s motion to recuse the district attorney’s office from prosecuting the case because two former public defenders had joined the district attorney’s office by the time of trial, but they had not obtained any confidential information about defendant’s case); see also State v. Reid, 334 N.C. 551 (1993) (discussing recusal of prosecutor who had previously represented defendant in the case before joining the district attorney’s office).