May a new judge hear an unrelated criminal charge against a person the judge previously prosecuted?

Plain-English summary

A newly elected district judge had served as an assistant district attorney and as a contract lawyer for the state welfare agency. The Commission answered two questions about cases involving people from that earlier work.

The judge was not disqualified from a new criminal case merely because the judge had prosecuted the same defendant for an entirely unrelated offense. The Commission distinguished a later case involving the same matters or facts previously prosecuted.

For a failure-to-pay-child-support case, the judge likewise was not disqualified solely by an earlier paternity prosecution involving the same child if paternity and the original support suit were separate actions. If child support had been awarded in the paternity suit, the Commission said the judge should disqualify.

Currency note

This opinion was issued in 1992, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Does prior prosecution of the same defendant always require recusal?

A: No. The Commission permitted a later charge unrelated to the earlier prosecuted offense.

Q: What if the new case involves facts the judge previously prosecuted?

A: The opinion says disqualification would exist if the present proceeding involved the earlier matters or facts.

Q: What if child support was awarded in the paternity suit the judge prosecuted?

A: The Commission said the judge should disqualify from the later failure-to-pay-support case.

Background and rules framework

The opinion applies the Commission’s earlier distinction between an unrelated later offense and a proceeding involving matters or facts from the judge’s prior prosecution. It does not cite a numbered Alabama Judicial Canon.

Citations and references

Cases:

• Morgan v. State, 503 S.W.2d 770, 773 (Tex.Cr.App. 1974): prior prosecution of the same defendant and a later criminal case.

Other opinions cited:

• Alabama JIC Opinions 89-364 and 77-22: later proceedings involving previously prosecuted matters or facts.

See also

• AL Judicial Ethics Op. 93-510: Prior Criminal Trial and Church Friend

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 92-460
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

92-460
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
December 18, 1992
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission on two questions. You were recently elected as district judge of Covington County and will assume office in January of 1993. Your questions arise because of your prior service as an assistant district attorney and as a contract attorney for the Department of Pensions and Security (now known as the Department of Human Resources). First, you are not disqualified in a criminal case against a defendant whom you have previously prosecuted where the defendant is charged with a crime totally unrelated to the prior offense. “If the judge did not participate in the investigation, preparation, or presentation of the case, the mere fact that he was in the office of the district attorney has been held not to be grounds for disqualification. ... Clearly a judge is not disqualified from trying a case as judge when the defendant is charged with an offense different from one that the judge may have prosecuted when he served as a district attorney or assistant district attorney.” Disqualification and Recusal of Judges, 17 St. Mary's Law Journal 599, 614 (1986). A judge is not disqualified from presiding over the prosecution of a criminal offense where he had prosecuted the same defendant in the previous convictions which were used to enhance the defendant’s sentence. Morgan v. State, 503 S.W.2d 770, 773 (Tex.Cr.App. 1974). “[T]he mere fact that the judge has previously prosecuted a party in a particular proceeding does not disqualify the judge from sitting in the current proceeding. Disqualification would exist, however, if the current proceeding in any way involves the matters or facts previously prosecuted.” Advisory Opinions 89-364 and 77- 22. Second, applying these same principles, you would not be disqualified from presiding over a case involving failure to pay child support where you previously prosecuted the defendant for the paternity of that same child if the paternity suit and the original child support suit were separate actions. However, if the child support had been awarded in the paternity suit, you should disqualify yourself from a case involving the failure to pay that child support. 92-460 Page 2 This opinion has been approved by the Judicial Inquiry Commission. If you have any questions regarding this or any other matter please contact me at your convenience.