Can You Request a Different District Attorney?

A defendant in a criminal case does not choose which district attorney will be assigned. Nor does the defendant have the power to request a different prosecutor. But in most states, the defense can seek to recuse a district attorney (or a prosecuting agency) if there is a bias or conflict of interest.

In California, under Penal Code 1424a1 PC, a criminal defendant can request a different prosecutor when there is a conflict of interest that may result in the defendant not receiving a fair trial. The request is referred to as a “motion to recuse a prosecutor.” If a judge grants the motion, a substitute district attorney is assigned to the case.

Defendants can also try to remove a judge from a criminal case (or even a civil case) per California Code of Civil Procedure 170.1. This statute says that a judge can be disqualified from a case under certain circumstances, like when:

• the judge has personal knowledge of certain facts concerning the proceeding,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding, and/or
• the judge has a financial interest in a proceeding or in a party to the proceeding.

Jurors are also subject to disqualification. Prior to a criminal trial, a defense attorney can try to remove a potential juror with either a:

• “for cause” challenge, or
• “peremptory” challenge.

Defendants can try to remove a prosecutor, judge, or juror in either misdemeanor or felony cases.

What is a Motion to Recuse a Prosecutor?

A motion to recuse a prosecutor is a legal request made by defendants in criminal cases whereby they ask the judge to appoint a new district attorney (DA) to the case.¹

Under California’s criminal law, a judge will grant the motion if the following are true:

1. there is a conflict of interest such that there is a possibility the DA will not act in a just manner, and
2. the conflict is so serious that it is likely that the defendant will not be treated fairly in all stages of the criminal proceeding.²

Examples of instances in which a judge granted a motion include when:

• a prosecutor tampered with evidence, specifically taking efforts to prevent the disclosure of an alleged sexual abuse victim’s medical and psychotherapy records,³ and
• there was a real risk that a district attorney’s office would be excessively eager in convicting the defendant.⁴

If a judge grants a motion to recuse, then he/she can remove a district attorney from the case or even an entire district attorney’s office from a case.

If a DA is recused, then another deputy or assistant district attorney is appointed.⁵

If a DA’s office is recused, then a special prosecutor is appointed to the case.⁶

Can a defendant try to remove a judge from a criminal or civil case?

Yes. California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.”

Under CCP 1701.1, the “for cause” reasons as to when a judge can be disqualified are when any one or more of the following are true:

• the judge has personal knowledge of disputed facts concerning the proceeding,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding,
• the judge has a financial interest in a proceeding or in a party to the proceeding,
• the judge, or the spouse of the judge, is a party to the proceeding or is an officer, director, or trustee of a party,
• a lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding,
• by reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding, or
• the judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding.⁷

A judge can also remove him- herself from a case, “for cause,” if for any reason:

• the judge believes his/her recusal would further the interests of justice,
• the judge believes there is a substantial doubt as to his/her ability to be impartial, or
• a person aware of the facts might cast doubt on the judge’s ability to be impartial.⁸

A party can seek to disqualify a judge by bringing a motion to recuse. If granted, a new judge is assigned to the case.

Can defendants remove jurors from a case?

Yes. During jury selection, a defense attorney or public defender can try not remove a potential juror either “for cause” or via a “peremptory challenge.”

“For cause” means that a juror has expressed a bias and is not suitable to decide the case. For example, the juror may have stated that, based on religious reasons, he/she cannot pass judgment on the defendant. Lawyers are given an unlimited amount of for cause challenges.

If an attorney exercises a “peremptory challenge”, the attorney does not need to state a specific reason as to why he/she dismisses a juror. Each attorney is allowed between six and twenty peremptory challenges in a case, depending on the alleged offenses.⁹

Note, though, that an attorney cannot remove a juror via a peremptory challenge for reasons related to that juror’s race, religion, gender, or ethnicity.¹⁰

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