A Legal Overview of Prosecutorial Misconduct

A Legal Overview of Prosecutorial Misconduct

This comment briefly overviews several legal problems and does not address the social, economic, and political aspects of the U.S. criminal justice system or the overall position and role of the prosecutor. Nor is this comment a critique of any individual law enforcement official, department, or prosecutor. No such commentary should be inferred. Always consult an experienced attorney in all criminal law matters.

Issues of improper criminal trials frequently relate to rights granted the accused by the U.S. Constitution. Notable protections are found in the Fifth and Sixth Amendments. It is always appropriate to examine their language.

Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

A Criminal Trial is Not a Contest

The Constitutional provisions underlie the idea that a criminal trial is not a contest that the prosecutor should attempt to win by any means.

The U.S. Supreme Court in a famous 1935 decision [Berger v. U.S.] wrote in a unanimous opinion:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

This characterization of the criminal prosecutor is present in numerous ethical provisions. This comment provides a brief and incomplete educational overview of types of criminal prosecutor misconduct. Always consult an experienced criminal law attorney in specific situations.

Selective or Vindictive Prosecution

Prosecutors have virtually unreviewable discretion in how they allocate their time and resources. However, if prosecution is based upon race, a famous 1886 U.S. Supreme Court decision indicated that this violates the equal protection clause of the Fourteenth Amendment. [Yick Wo v. Hopkins]. Subsequent decisions expand the concept to include other arbitrary classifications including the exercise of constitutionally protected rights.

Vindictive prosecution allegations require proof of increased charges after an initial successful appeal of a conviction or a threat of more serious charges if a defendant does not accept a plea offer. Nevertheless, it is difficult to prove that vindictiveness was the sole or motivating factor in the prosecution.

Impartial Prosecutor

Demonstrating a biased prosecutor requires proof that the prosecutor had a conflict of interest or personal financial interest in bringing the prosecution. However, the presumption that a prosecution was undertaken in good faith may only be overcome by very clear and direct evidence.


The U.S. Supreme Court in a 1963 decision [Brady v. Maryland] wrote:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

This means that the Prosecution must disclose to the defense evidence that is exculpatory (indicates innocence) or that might be used to impeach (contradict or question the truthfulness of) a witness. A recent search indicated in excess of 40,000 legal citations in judicial decisions and articles to the Brady decision. Successful “Brady” challenges to criminal convictions may occur years after the original trial.

Jury Selection

There are two forms of challenges to potential members of a trial jury: peremptory and challenge for cause. Procedural rules allow a peremptory challenge to a specified number of potential jurors in the jury pool by either side without stating a reason. Five to fifteen peremptory challenges are common, based upon the seriousness of the alleged offense. A challenge for cause (also called a strike or removal for cause) removes a potential juror that, due to a specifically identified reason, appears incapable of rendering a fair and impartial verdict. For example, a potential juror may state that she or he has already decided guilt or innocence based on pre-trial publicity and cannot set-aside that opinion. The number of challenges for cause is unlimited.

The concept of peremptory challenges is criticized for potentially eliminating certain groups of people who would otherwise serve in a random selection. In criminal trials this may increase the probability of conviction since only one or two individual juror “holdouts” might prevent a guilty verdict. Consequently, some jurisdictions give the defense more peremptory challenges than the prosecution.

The U.S. Supreme Court in a 1946 civil lawsuit decision [Thiel v. Southern Pacific Co.] wrote that prospective jurors were not to be disqualified because of stereotyping, such as “working class.” However, the major criminal case decision occurred in 1966 [Batson v. Kentucky]. Batson famously disqualified peremptory challenges based upon race. If there is not a legitimate neutral non-racial reason for the strike, a conviction may be reversed. A 2016 U.S. Supreme Court decision, Foster v. Chatman, affirmed 7:1 the Batson decision. The Foster decision indicated that race-neutral explanations for striking prospective jurors will not be sufficient where there is “a concerted effort to keep black prospective jurors off the jury.” There are in excess of 20,000 legal citations in judicial decisions and articles to Batson.

This comment is limited to prosecutorial misconduct and does not address misconduct by individual prospective or actual jurors.


In most trial situations, the defendant must properly object and obtain an incorrectly adverse ruling from the trial judge in order to “preserve error.” Additionally, the trial judge may be allowed to cure any error by a jury instruction.

A prosecutor may not, in opening or closing statements, argue to the jury concerning inadmissible evidence or the defendant’s failure to testify. However, a prosecutor may argue for law enforcement, provide an overview of the admitted evidence, provide reasonable deductions based on this evidence, and respond to defense arguments. It is not difficult for the criminal defense to “open the door” to either a devastating cross-examination of a witness or an otherwise impermissible closing argument.

Trials typically have a sequestration order preventing witnesses from being present in the courtroom or communicating with one another. However, the trial judge has considerable discretion in how this order is enforced.

Manufactured Evidence

Considerable controversy surrounds “jail house informants” or other confidential informants who testify against a defendant. Are they reliable, simply troublemakers, or are they delusional? Is their testimony in exchange for rewards, special privileges, or reduced sentences? What duty does a prosecutor have to evaluate their credibility? Absent clear knowledge of perjury, a prosecutor may present informant evidence and allow the jury to determine the credibility of the testimony. However, there may be a Brady violation (see pre-trial discussion above) if the prosecutor fails to reveal information relevant to the witness’s credibility.

New forms of cell phone and other video and audio recordings may provide evidence that suggests police or witness misconduct, or witness tampering by others. A defense attorney must carefully search for this material. Prudence suggests specifically requesting such items from the prosecutor and generally searching for private citizen or store surveillance video. Police interrogation video or jail recordings of telephone or visitor conversations may be available.

A prosecutor typically is not allowed to ask a witness to comment on the truthfulness of another witness’s specific testimony, since issues of credibility are for the jury to decide. However, reputational testimony concerning a witness may be allowable [Federal Rules of Evidence 608].

Frequently, the stronger legal argument in a particular situation is ineffective assistance of counsel rather than prosecutorial misconduct. However, this is not easily proven.

Evidentiary Hearing Required

In all of these situations one must present prima facie (on the face of it) evidence of misconduct in order to obtain a detailed court hearing and related testimony under oath. Allegations alone, without facts, are insufficient. Additionally, a given jurisdiction may broadly interpret the “harmless error” rule to prevent the reversal of a conviction. Perfect error-free trials are not guaranteed in any jurisdiction.


Even if prosecutorial misconduct exists, it may be impossible to obtain monetary damages from the prosecutor personally. Immunity from lawsuits is frequently available to prosecutors and judges when performing official acts. This typically may only be overcome with evidence that there was a violation of a “clearly established” constitutional right that any reasonable person would know. Even in this situation, there may be a statute of limitation (time period in which to sue) that has passed. Furthermore, a prosecutor may be released from liability if a defendant enters into a voluntary agreement dismissing the claim.

However, a State Bar Association has discretion to suspend or disbar attorneys to protect the public and maintain the integrity of the legal profession. This is typically not to directly punish prosecutorial misconduct, but may involve personal actions that are related to an egregious situation.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in all specific situations.

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