Going to court can be scary and distressing. Knowing that there will be a district attorney set to ensure you are convicted of your charges does not make things any better.
When it comes to criminal cases, the defendant, or the person who is accused of the crimes, is not given the opportunity to choose who the prosecutor is. Also, the defendant will not be able to ask for a different prosecutor than the one who is assigned to their case. The only thing that a defendant can do is preclude some prosecutors from being considered.
If there is a real and clear conflict of interest, then there is a chance for a new prosecutor. A conflict of interest happens when one party has something to gain from the fall of another. For example, if the defendant is alleged to have harmed a particular victim who is related to the prosecutor, it could be argued that the prosecutor has a bias and therefore should be ruled out as an option.
How Can a Biased Prosecutor be Removed From Consideration?
Under California’s Penal Code of crimes and punishments, when a conflict of interest exists that would make a case against the defendant unfair, that prosecutor may be removed. To move forward with changing out a potentially prejudiced prosecutor, a “motion to recuse a prosecutor” would be submitted to the judge.
The judge has the ability to grant the motion or dismiss it. If the judge decides there is a real issue with the prosecutor, they will grant the motion and assign a new attorney.
If the following are true for your case, the judge is likely going to grant your motion to remove the prosecutor:
- If it is possible that the district attorney will not act in a fair and impartial way toward the defendant in the case.
- There is the potential that the entire criminal proceeding will be clouded with partisan and discriminatory practices.
Potential situations in which there may be a motion to replace the DA include:
- The prosecutor corrupted and manipulated evidence.
- The DA’s office has a particular interest in securing a conviction for a particular defendant.
When the prosecuting attorneys themselves are problematic, they can be removed and replaced. Another DA will be appointed. In some situations, the entire DA’s office is excluded from a case. Then, a special prosecutor is installed.
There are several aspects of the criminal justice system that have to be addressed when a case moves forward. A qualified attorney with extensive experience will not only be able to build a strong defense that will topple the DA’s assertions, but also identify errors or issues with police conduct or within the DA’s office.
It is essential that defendants have a high-quality, seasoned criminal defense attorney fighting to protect their rights. In the San Diego area, David M. Boertje is that skilled San Diego criminal defense lawyer who can help you work toward the best possible outcome for your unique criminal case.
Speak With a San Diego Criminal Defense Attorney Today
Initial case evaluations with the San Diego criminal defense law firm of the Law Offices of David M. Boertje are always free of charge. You can schedule your case evaluation by calling (619) 229-1870 for the San Diego office or (760) 476-0901 for the Carlsbad location.