Prosecutorial misconduct is when a prosecutor violates the professional code of ethics or breaks the law during prosecution. This type of conduct is counterproductive to the goals of the Department of Justice because it makes it challenging for “justice to prevail.” Prosecutors have a duty imposed by their professional obligations and the United States constitution to ensure fairness during criminal litigation. Improper, unethical, or illegal acts and the failure of a prosecutor to act when required can cause wrongful conviction or unjustifiable punishment.
The law makes it mandatory for prosecutors to abide by the law and perform their duties expeditiously, consistently, and fairly. The experts must also protect and respect human dignity and advocate for human rights, subsequently ensuring the proper functioning of the criminal justice system. Because prosecutors have extensive control over all processes, from investigations and drafting charges to recommend the correct sentence following a conviction, any form of misconduct can hinder justice.
Prosecutorial Misconduct Defined
Prosecutorial misconduct is a broad term that refers to any unethical or illegal conduct by a prosecutor during a criminal case. This offense is different from malicious prosecution, where a prosecutor files a baseless lawsuit against a defendant. In prosecutorial misconduct, a prosecutor uses dishonest or unfair means to ensure a defendant's conviction.
Prosecutors hold a position that wields a lot of power. As such, these positions do not come devoid of stricter responsibilities and higher standards of professional ethics. Misconduct attracts harsh disciplinary action and can result in a judge overturning a conviction to afford a defendant relief.
Other steps a judge can take after unveiling prosecutorial misconduct include:
- Ask jurors to disregard particular comments or evidence
- Grant a retrial under Penal Code 1181
The roles of a prosecutor are crucial during all stages of the criminal justice process. Irrespective of the phase where misconduct occurs, it can affect the outcome of a trial.
The main types of prosecutorial misconduct include:
- Withholding evidence that can clear a defendant’s name from fault (exculpatory evidence)
- Presenting fabricated evidence
- The use of improper arguments
- Using discriminatory tactics during jury selection
Withholding Evidence from the Defense
Exculpatory evidence, also referred to as “Brady material,” is any form of proof that can free a defendant from guilt or fault. Withholding exculpatory evidence violates the due process of a criminal case.
Evidence helps the court decide whether a defendant is guilty and the befitting punishment to impose. A prosecutor’s failure to provide proof that can free a defendant from blame can cause the conviction of an innocent person.
Brady violations are considered malicious forms of prosecutorial misconduct. This is because they prevent the jury from considering admissible evidence that supports the innocence of a defendant. If jurors cannot access this evidence, a defendant faces a greater likelihood of serving time for a crime they did not commit.
The Introduction of False Evidence
False evidence is forged, fabricated, doctored, or tainted proof. The evidence can disrupt the course of justice and leave an innocent person in jail or a guilty one roaming the streets.
For instance, a child is murdered, and the news hits news headlines. Pressure from the public makes it crucial for the prosecutors to find the perpetrator of the crime and convict them. Unfortunately, the only person who witnessed the crime is 50/50, whether she saw John or someone that looks like John.
If the prosecutor persuades the eyewitness to claim they are 100% sure they saw John leaving the crime scene, this constitutes false evidence. The testimony is a lie because the witness cannot confirm whether the person they saw was john or someone else.
Other common forms of false evidence a prosecutor can introduce are as follows:
- Hearsay statements
- Falsified character evidence
When a prosecutor deliberately introduces false evidence to get a conviction, the defendant qualifies for a retrial or dismissal of all charges. Also, it is an ethical violation for the prosecutor to intimidate witnesses brought forth by the defendant’s defense team. For instance, threatening a witness with deportation can make them fail to testify. The action is equally as harmful to the trial as introducing false evidence.
Improper Arguments
Improper arguments or assertions have the power to sway the court's opinion in a manner unfair to the defendant. Prosecutors must refrain from making specific arguments during their opening or closing statements. Remember that a prosecutor’s words bear the weight of the government, and jurors are often inclined to believe the “government’s opinion” as opposed to what the evidence says.
Here are the most common types of improper arguments:
- Testifying on Behalf of an Absent Witness—all arguments made by a prosecutor must focus solely on the evidence presented during the trial. If a witness fails to show up, the prosecutor cannot testify on their behalf. Giving the testimony of an absent observer denies a defendant of their right to cross-examine the witness. Essentially, this leaves the jury with no choice but to make a judgment based solely on the version of the testimony presented by the prosecutor. Unfortunately, this version of the testimony will often point at a defendant’s guilt.
- Misstating the Law— another form of improper argument is misquoting the law. A false statement of the law misleads the jury into believing that a defendant violated a non-existent law.
- Arguing Facts Not in Evidence— like testifying for an absent witness, it is also unethical for a prosecutor to give arguments based on facts, not in evidence. Misguiding the jury with unsupported attributes also constitutes misconduct.
- The mischaracterization of Evidence—how a prosecutor characterizes evidence can have a powerful impact on the jury's views. For instance, during the closing argument, a prosecutor can skew evidence and misguide the jury. The act is unfairly prejudiced against the defendant. Jurors are likely to depend on the image painted by the prosecutor and not the story told by the available evidence.
- Impugning the Defense—another common form of improper arguments by a prosecutor is challenging the defense or questioning the credibility of proof tabled by the defense team. Again, the misconduct attacks the defendant’s presumption of innocence and implies that the prosecutor can tell the accused is guilty, even without depending on the tabled evidence.
- Shifting the Burden of Proof— the prosecution bears the burden of proof. It is up to the prosecutor to convince the court that a defendant is guilty beyond a reasonable doubt without making any ethical violations. Often, the state has more power, authority, and resources to prove a case. The “presumption of innocence” helps to counterbalance this power. It is unethical for the prosecutor to make a defendant appear guilty unless they can prove they are innocent.
- Arguing Inconsistent Theories of Prosecution—when a case involves more than one defendant, the arguments tabled by a prosecutor during each case should not conflict. For instance, if a gang of three “armed criminals” participated in a robbery and shot killed the night guard with a single bullet to the head, a prosecutor cannot claim that each gang member shot the guard. Evidence shows that there was a single assailant. Claiming that all the gang members shot the victim undermines fundamental prosecutorial fairness and the credibility of all the convictions.
- Appealing to Religious Authority—moreover, it is a professional violation for a prosecutor to appeal to religious authority, especially during a capital case. For example, a prosecutor cannot stand before the court to argue that the Bible calls for the death penalty if a person commits a particular crime. This type of argument can again interfere with juror’s idea of their responsibilities during criminal proceedings. The personal religious beliefs of the jurors could make them assume that the right thing to do is carry out “God’s will” and impose an unjustifiable death penalty.
- Presenting Personal Opinion—again, prosecutors speak with the government’s authority. Their statements have inherently more power than the statements of defense lawyers or even witnesses. When a prosecutor expresses their personal opinions about a defendant’s guilt, this can again misguide the jurors. They can interpret a case based on the prosecutor's views and not the evidence.
Punishment for Prosecutorial Misconduct
Prosecutorial misconduct often has devastating effects on the life, future, and well-being of a defendant. Unfortunately, the penalty for the violation is not harsh, not to mention that courts have a history of favoring the prosecutor. In most cases, the court will rule that the misconduct stems from a “harmless error.”
There is no actual punishment for prosecutorial misconduct. However, a violation of professional and legal standards can force the judge to overturn a case and grant a defendant relief. The prosecutor can also be subjected to the bar complaint process.
Common Reasons for Prosecutorial Misconduct
The victims of prosecutorial misconduct often suffer irreparable damage, mainly when a case results in a wrongful conviction. While the negative repercussions of misconduct are apparent, the prosecutor will likely face no consequences.
The motives behind the actions are not universal and often vary from one case to another. In some cases, prosecutors are politically motivated to violate ethical standards, while others are blinded by their desire to ensure justice for the victims.
Here are three of the most common motives for prosecutorial misconduct:
Pressure to Convict
It is often beneficial when the public does not view prosecutors as “soft on crime.” A reputation of being lenient with “lawbreakers” almost guarantees negative consequences during re-election. Hence, the risk of prosecutorial misconduct increases during high-profile cases that attract media attention. With the public and government officials keeping close tabs on a case, this can lead to a prosecutor doing “whatever it takes” to obtain a conviction.
The urge to maintain a reputation of being “tough on crime” is one of the leading motivators of prosecutorial misconduct. Some prosecutors will ensure their re-election by withholding exculpatory evidence or presenting falsified evidence. According to recent studies in 2013, prosecutors often take more cases to trial than offer a reduced number of plea bargains, especially when running for re-election.
Career Suicide for Those That Report Misconduct
Often, professionals within the justice system thrive from maintaining pleasant relations with their colleagues. It is common practice for an attorney to use the cordial relationship with a prosecutor to obtain a favorable plea bargain. Consequently, reporting prosecutorial misconduct will likely result in “career suicide.” Even though comradely helps in creating and maintaining amicable working conditions, it also hinders lawyers from reporting misconduct without the risk of suffering negative consequences.
Professional Conduct Rule 8.3(a) of the American Bar Association tasks lawyers with reporting misconduct from other colleagues if they question their trustworthiness, honesty, or fitness. While this rule is clear, lawyers often fear retaliation from the legal community.
It takes a criminal attorney dedicated to upholding high ethical standards to break the norm and put justice over comradely. A reliable lawyer will file motions with the court to ensure a judgment is not passed based on a prosecutor’s illegal, unethical, or improper acts. Successful motions increase the odds of a judge reducing a defendant's sentence, dismissing the charges, or vacating a conviction to ensure an innocent person does not end up serving time.
Lack of Consequences
Prosecutors accused of ethical violations will often not receive any sanctions. Even though a judge can dismiss a case or grant a retrial, this is as far as it goes regarding the consequences suffered by a prosecutor guilty of misconduct. Even in extreme cases, it is improbable for a prosecutor to be disbarred. It is safe to say the justice system is poorly equipped to conduct investigations and enforce disciplinary sanctions.
Generally, prosecutors have no fear of punishment. This gives them little motivation to maintain ethical practices, especially when the pros of securing a conviction are way higher than the cons of a possible sanction.
Prosecutorial misconduct robs defendants of their right to a fair trial during criminal proceedings. If you face charges for any crime, this is more reason for you to ensure you have a strong defense team in your corner. An experienced attorney will advocate for your rights and keep the prosecution from committing ethical violations just to obtain a conviction.
Appeals and Prosecutorial Misconduct
Proving that a prosecutor made ethical violations can be challenging but not impossible. A reliable lawyer can help you gather the much-needed evidence that shows a prosecutor manipulated evidence, refused to pursue other suspects, or opted for a witness notorious for giving false testimonies. A successful appeal in the court of appeals, Supreme Court, or any other higher appeals court can force a judge to dismiss a case or grant a retrial.
It is imperative to understand that a judge can only order a retrial if your defense attorney files a motion before the sentencing hearing. For this to happen, your attorney must prove two critical elements:
Prejudice
Your attorney must prove that prosecutorial misconduct was prejudiced against the defendant. Essentially, when a prosecutor is prejudiced, this conduct can impact the outcome of a trial. A prosecutor can be biased by:
- Making arguments based on facts not in evidence
- Making inflammatory comments to sway the views of the jury
- Expressing personal opinions
The court favors the accused only when the case, minus prosecutorial misconduct, raises doubt about their guilt. Often, an attorney can overturn a guilty verdict if the outcome of a case could be different without the ethical violations of a prosecutor. Therefore, you can expect the court to retain a guilty verdict if the evidence of guilt against the defendant is overwhelming.
Objection to Misconduct
It is often easier to prove prosecutorial misconduct and obtain a new trial if your attorney objected to a prosecutor’s ethical violations. Opposing when misconduct happens allows the judge to give the jury instructions to disregard the actions or comments of the prosecutor.
Also, you can obtain a new trial if you received inefficient help from your legal team. Note that proving that your legal team was ineffective and your lawyer did not object to misconduct can be difficult, making it imperative always to choose the best legal counsel the first time.
Prosecutorial misconduct can cripple your chances of clearing your name. Prosecutors hold positions that give them the ability to illegally erode defendants' rights by withholding crucial evidence, presenting false evidence, or raising improper arguments to increase the odds of a conviction. A dependable criminal defense attorney can fight to ensure prosecutors do not violate professional, ethical standards, leading to a wrongful conviction or unwarranted social stigma.
Find a Criminal Defense Attorney Near Me
At Leah Legal, we are committed to shedding light on systematic injustices and prosecutorial misconduct that lead to a defendant's wrongful conviction in Van Nuys, CA. If the ethical violations by a prosecutor resulted in wrongful sentencing, turn to us for the much-needed legal counsel and representation. We are advocates of truth and justice and have the skills to bring injustice to light. Over the years, we have built a strong reputation for overturning wrongful convictions and securing the release of innocent persons from prison. Call us today at 818-484-1100 for a no-fee consultation and case evaluation.