Skip to main content icon/video/no-internet
icon backReturn to Entries

Prosecutorial Misconduct

The term prosecutorial misconduct encompasses a range of improper behaviors that violate the rules of court or ethical standards associated with the practice of law. Examples of prosecutorial misconduct characterized as courtroom misconduct include making inflammatory remarks in front of the jury, attempting to introduce inadmissible evidence, making improper statements during closing arguments, and expressing bias against the defendant or defendant's counsel. Misconduct can also be characterized as evidence-related. This category of misconduct includes withholding evidence or mishandling evidence (i.e., tampering with or destroying evidence) or failing to disclose exculpatory evidence. Data provided by the Center for Public Integrity indicate that in over 2,000 cases reported since 1970, prosecutorial misconduct was cited in judicial review as a factor when dismissing charges, reversing convictions, or reducing sentences. This finding raises awareness of the potential impact of prosecutorial misconduct on various aspects of the trial process from pretrial issues to jury decision making.

Standard for Review

Most claims of prosecutorial misconduct are reviewed under the harmless error doctrine. Review for harmless error involves a complex test that applies to procedural rules as well as federal and state laws. The doctrine is used when a petitioner appeals a decision on the grounds that a legal error was made that resulted in an incorrect jury verdict or judicial decision. When a claim of prosecutorial misconduct is made, the appellate court is required to weigh the claim of impropriety against the fairness of the procedure. Appellate review of prosecutorial misconduct will consist of determining whether the error was significant enough to strike down the decision reached by the trial court. If the appellate court rules the error harmless, it is affirming that the error was not sufficient to affect the decision reached at the trial court level. If the error is ruled as serious, the reviewing court will set aside the trial court's decision. In the event that an error is held as serious, the appellate court may order a new trial for the defendant.

A ruling of misconduct will not always grant relief for the defendant, however, as the court can rule that the prosecutor's acts, while deemed improper, did not undermine the fairness of the process or confidence in the jury's verdict. For example, in 1985 the 11th Circuit Court of Appeals addressed multiple claims of prosecutorial misconduct during closing argument brought forward by the defendant in Brooks v. Kemp. While acknowledging the prosecutor's statements as improper, the review court determined that the statements did not render the sentencing phase unfair. The court reasoned that the improper statements were mitigated by other arguments made to the jury and remedied by jury instructions. It concluded that the prosecutorial misconduct would not have changed the outcome of the trial, hence the sentencing phase was not fundamentally unfair. Reviewing courts must therefore determine when a prosecutor's courtroom misconduct is sufficient to affect the defendant's right to due process and grant the defendant some type of remedy as a result.

Types of Prosecutorial Misconduct

Prosecutorial misconduct can take place throughout various stages of the trial process. One of the most common forms of prosecutorial misconduct addresses evidence-related issues. In general, it is misconduct for a prosecutor to withhold, alter, or mishandle evidence (tampering with or destroying evidence). Specifically, prosecutors are required to disclose to the defense evidence that is considered exculpatory (evidence likely to prove someone's innocence). By the same token, it is considered misconduct for a prosecutor to fail to preserve evidence or attempt to introduce evidence deemed inadmissible in court. It is also considered misconduct for prosecutors to use evidence to mislead the jury. Misconduct that focuses on the defendant, individuals involved with the defendant's case, and/or witness-related issues can occur either before trial or during trial. For example, it is misconduct for a prosecutor to make prejudicial comments about the defendant both before trial as well as during opening statements and closing arguments. Prosecutors are also not allowed to comment on a defendant's failure to testify. It is also considered misconduct for prosecutors to comment on the relationships between the defendant and codefendants. In addition, expressing doubt about defense counsel and/or expressing dissatisfaction with witnesses brought forward by the defense are also considered misconduct. Overall, any comments that question whether a defendant's due process rights have been challenged can be considered misconduct. Prosecutorial misconduct results in relief for the defendant if the review court rules that the prejudice caused by the misconduct is sufficient to affect the defendant's right to due process.

...

  • Loading...
locked icon

Sign in to access this content

Get a 30 day FREE TRIAL

  • Watch videos from a variety of sources bringing classroom topics to life
  • Read modern, diverse business cases
  • Explore hundreds of books and reference titles

Read next

More like this

Sage Recommends

We found other relevant content for you on other Sage platforms.

close

Have you created a personal profile? Login or create a profile so that you can save clips, playlists and searches

close
close
close Signed In to profile You are signed in as:
close
Logged in Institution Institution