What, Exactly, Is “Prosecutorial Misconduct”?

What, Exactly, Is “Prosecutorial Misconduct”?

As the Supreme Court has famously written, the government’s interest in a criminal prosecution “is not that it shall win a case, but that justice shall be done.” An inscription on the walls of the Department of Justice, just outside the door to the Attorney General’s office, expresses similar sentiments: “The United States wins its point whenever justice is done its citizens in the courts.”

For that reason, federal prosecutors have a special duty – imposed not only by their professional obligations but the Constitution itself – to ensure fairness in a criminal case. They engage in prosecutorial misconduct when they improperly or illegally act (or fail to act, when required to do so) in a way that causes a defendant to be wrongfully convicted or punished unjustifiably.

Prosecutorial misconduct comes in many forms.

Prosecutors in the United States exercise substantial control over most phases of a criminal case – from participating in the investigation, to deciding what charges to seek, to recommending a sentence after conviction – and prosecutorial misconduct can infect any stage of this process.

Actions that courts have labeled prosecutorial misconduct include:

1. Using improper investigative techniques, such as “entrapment” – inducing a person to commit a crime who was not otherwise disposed to commit it.

2. Bringing criminal charges in bad faith without realistic hope of winning a conviction – for example, to punish a political rival, or to retaliate against someone.

3. Making statements to the media that prejudice the jury pool.

4. Engaging in improper plea-bargaining – for example, convincing a defendant to plead guilty through false promises or misrepresentations about the existence of incriminating evidence.

5. Failing to turn over exculpatory evidence and avoid the right to notice and review of exculpatory evidence, failing to disclose exculpatory evidence,

6. Tampering with evidence.

7. Knowingly presenting false witness testimony or other false evidence to a court or grand jury.

8. Asking a defendant or defense witness damaging and suggestive questions with no factual basis.

9. Making improper statements in front of the jury – for example, expressing a personal opinion about the guilt of a defendant or the credibility of testimony, mentioning facts not in evidence, or criticizing the defendant for exercising his constitutional right not to testify.

10. introducing false evidence,

11. using improper arguments,

12. discriminating in jury selection,

13. violations of the constitutional rights of defendants. An action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy.

14. constitutional deprivations visited pursuant to governmental “custom” even though such custom has not received formal approval through the government’s official decisionmaking channels.

Sufficiently culpable and harmful misconduct can result in the dismissal of charges or a declaration of a mistrial.

Misconduct can also be raised on appeal or by a collateral attack on the conviction through a petition for habeas corpus.

Such relief is rare, however. To show that prosecutorial misconduct requires dismissal of the indictment or a mistrial, the defendant usually has to show that the prosecutor willfully engaged in misconduct and that the misconduct “prejudiced” the defendant. In other words, when considering a sanction, judges will consider whether the prosecutor intended to act improperly or was motivated by some illicit or sinister reason.

Even when the prosecutor did not act intentionally, however, a judge might still dismiss the indictment or declare a mistrial if the error rendered the proceeding fundamentally unfair to the defendant. And if the error did not affect the fundamental fairness of proceeding – and if a judge believes the prosecutor acted in good faith or simply made a mistake – she may impose some lesser sanction, like a stern warning or a curative jury instruction.

Prosecutorial misconduct is not limited to the context of a criminal trial. It can take place at any stage of the criminal court process. Some of these stages may include pretrial proceedings and sentencing hearings.

A judge can do any of the following if he/she finds that misconduct prejudiced the accused:

dismiss the charge(s),
admonish the jury to disregard certain evidence or comments, or
grant a motion for a new trial

Note: malicious prosecution refers to something different than prosecutorial misconduct. The phrase refers to a case that gets filed without any legal foundation or basis for it. The case can be either civil or criminal in nature.