Most people are familiar with types of police misconduct, ranging from illegal search and seizure, use of excessive force or forced confessions. But while law enforcement officials are critical in arresting and investigating alleged criminals, it’s the prosecutors who actually choose to file charges, present evidence and strive to ensure a conviction of defendant. And just like police, prosecutors sometimes act in a legally questionable manner. Unfortunately, uncovering misconduct on the part of a prosecutor can be difficult and correcting the problem is not always easy, particularly if a conviction already took place.
What is Prosecutorial Misconduct?
At its most basic, prosecutorial misconduct occurs when a prosecutor acts in an illegal or unethical manner. All attorneys must agree to abide by a code of ethics when they take on their position, this includes not willingly presenting false evidence, recusing themselves if there is a conflict of interest, discriminating in jury selections and presenting improper arguments in trial.
It is important to distinguish between negligence and misconduct. Not all mistakes by prosecutors are examples of misconduct. Everyone makes mistakes and most prosecutors are hard-working people doing their best to enforce the law. Evidence is sometimes overlooked given the volume of cases and material to be disclosed. Sometimes these mistakes are enough to result in a wrongful conviction, even if the prosecutor didn’t intend to violate a suspect’s rights.
But sometimes prosecutors are so driven to secure a conviction that they are willing to break the law or their profession’s code of ethics in order to do so. The term “misconduct” is generally reserved for cases where the prosecutor intentionally acted in a problematic manner.
Examples of Misconduct by Prosecutors
The most common types of misconduct by prosecutors include abusing prosecutorial discretion, knowingly providing false evidence, failing to disclose evidence, improper use of the media, using improper arguments and using discriminatory methods to select jury members. Prosecutorial discretion is the ability of a prosecutor to decide whether or not to press charges, what charges to file and the severity of the charges. As an example, if a prosecutor had a personal vendetta against a certain family in town and their adult daughter was charged with vandalizing a playground behind their house that happened to belong to a church. If the prosecutor chose to file felony vandalism and hate crime charges even after the family paid to fix the damage, the pastor requested that charges not be filed and there was no evidence the crime was motivated based on hatred of the group’s religion, it would be an example of the prosecutor abusing his discretion.
Obviously knowingly introducing false evidence into a case would not just be an unethical act, but a criminal one as well. This would also cover allowing someone to testify if the prosecutor knew they planned to lie under oath. Even if the false evidence was only something that would change the sentencing guidelines for someone who has confessed to the crime, for example, offering evidence that would allow a first-degree murder charge to be punishable by the death penalty, this is still against the law.
A similar, but more common, type of prosecutorial misconduct though is the failure to disclose exculpatory evidence, meaning evidence that could help a defendant. Prosecutors are legally required to turn over evidence that could help the defendant’s criminal lawyer fight the accusations against their client or reduce their sentence. This is known as a Brady violation after the United States Supreme Court case of Brady V. Maryland where the precedent became established. As an example, if a witness provided a testimony stating the suspect was across town when a crime occurred, but it conflicted with statements provided by other witnesses that stated that he was the one who committed crime. It’s possible the first witness had a much more clear view of the suspect than the others and this could make or break the defense lawyer’s case.
Improper use of the news media occurs when the prosecutor provides too much information to the press in a case. For example, providing needlessly upsetting and gory details about a crime just after the Grand Jury elects to indict a suspected murderer. This could bias potential jurors against the defendant.
Improper arguments are something that most people wouldn’t be able to identify right off the bat, but that lawyers are supposed to refrain from using in court. In many cases, the opposing attorney will object to such statements and the judge will warn the prosecutor from using these arguments, but this doesn’t always happen. Improper arguments include criticizing the defendant for invoking his right to silence, misstating law, bringing up a prior conviction or other facts that were supposed to be excluded from the trial.
Finally, the prosecution cannot use discriminatory methods to choose a jury. This means choosing to exclude a juror based on their sex, religion, ethnicity or similar trait. An example might be if a prosecutor dismissed a Mormon juror because he believed the juror would be less inclined to believe a Mormon defendant’s guilt.
Investigating Misconduct Accusations
The problem of prosecutorial misconduct is particularly serious because the District Attorney and those working for them have such an incredible level of power regarding the fate of those accused of crimes. In some cases, the prosecutor literally has a suspect’s life in his hands. To make matters worse, prosecutors are often the ones in control of the actual evidence that would be need to be reviewed in order to prove misconduct allegations. Sometimes they make those investigating these claims jump through hoops in order to review the evidence, in other cases, the prosecutor’s files will be handed over, only to find that certain pieces of evidence are destroyed or that a crucial witness to the allegations has already died.
What Happens When Misconduct Has Been Uncovered?
If it’s been discovered that a prosecutor acted in an illegal or unethical manner, anyone who has been affected by this misconduct can file an appeal to have their conviction overturned, to secure a new trial or to have their sentence reviewed. If the case is still in progress, a mistrial may be declared. As for the prosecutor responsible, there are surprisingly few reliable methods for holding them accountable under both the California state and United States legal systems.
They can obviously be fired if they are not politically appointed, but if they have been elected as a District Attorney, they will need to be voted out, resign on their own, be removed through a court proceeding or be impeached. Unfortunately, the Innocence Project has found that these actions are rare and are generally only taken when the misconduct was particularly egregious.
In a case involving a particularly serious breach of the law, such as presenting falsified evidence, the prosecutor could be criminally charged for her wrongdoing. Sadly, the Supreme Court has held that those who were wrongly convicted as a result of prosecutorial misconduct can generally not sue the person responsible in civil courts, even if she intentionally broke the law to secure the conviction.
Preventing Misconduct Before it Starts
The Innocence Project has done exemplary work in not only freeing the innocent, but also highlighting any unethical behavior on the part of prosecutors working to secure a conviction. Their work has prompted District Attorney’s Offices to train prosecutors to follow all ethical guidelines. In San Diego County, the training seems to be effective as prosecutorial misconduct is actually fairly rare compared to other parts of the state.
If you believe your rights were violated by the misconduct of a prosecutor, please contact a attorney who specializes in appeals. While Peter M. Liss feels it is important to bring attention to all problematic aspects of the criminal justice system, he does not typically take these types of cases. If you have been charged with a crime and want to ensure your rights are protected during the trial though, please call (760) 643-4050 to schedule a free initial consultation.
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