Last Updated on May 9, 2025
Most people are familiar with misconduct, including 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 the defendant’s conviction. Unfortunately, just like police, prosecutors sometimes act in a legally questionable manner. Sadly, uncovering prosecutorial misconduct can be difficult, and correcting the problem can be time-consuming, particularly if a conviction already took place.
What is Prosecutorial Misconduct?
Prosecutorial misconduct occurs when a prosecutor acts in an illegal or unethical manner. All attorneys, including defense attorneys and prosecutors, must agree to abide by a code of ethics. Among other things, they must swear not to willingly present false evidence, recuse themselves if there is a conflict of interest, discriminate during jury selections, or present improper arguments in court.
When determining if an action is a violation of prosecutorial ethics, judges must distinguish between negligence and misconduct. Not all prosecutor’s mistakes 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.
Sadly, prosecutors are sometimes 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
There are many types of prosecutorial misconduct. The most common varieties include:
Absuing Prosecutorial Discretion
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, imagine a prosecutor had a personal vendetta against a family in town, and their daughter was charged with vandalizing a church playground. If the prosecutor filed felony vandalism and hate crime charges against the girl, though the family already worked with the pastor to repair the damage and there was no evidence the destruction was motivated by religious bias, this would be an abuse of his power.
Intentionally Providing False Evidence
Obviously, knowingly introducing false evidence into a case would not just be an unethical act but a criminal one as well. This unethical act doesn’t just involve physical evidence but also includes 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 already 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.
Failing to Disclose Evidence
“What’s more common than a prosecutor providing false evidence is failing to disclose evidence that could help a defendant,” says attorney Peter Liss. “This type of evidence is known as exculpatory, and while I haven’t seen this in any cases I have handled, it is a common reason Innocence Project has successfully been able to have cases overturned.”
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 requirement 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, the prosecutor would have to share knowledge of a possible alibi with the defense if a witness provided a testimony stating the suspect was across town when a crime occurred, and this conflicted with statements provided by other witnesses. It’s possible the first witness had a clearer view of the suspect than the others and this could make or break the defense lawyer’s case.
Improperly Utilizing the Media
Improper use of the news media occurs when the prosecutor provides too much information to the press in a case. For example, it would be unethical to give needlessly upsetting and gory details about a crime just after the Grand Jury elects to indict a suspected murderer, as this could bias potential jurors against the defendant.
Using Improper Arguments
Improper arguments are something that most people wouldn’t be able to identify right off the bat, but 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 not to use these arguments, but this doesn’t always happen. Improper arguments include:
- Criticizing the defendant for invoking his right to silence
- Misstating the law
- Bringing up a prior conviction
- Mentioning other facts that were supposed to be excluded from the trial
Choosing Jury Members in a Discriminatory Manner
Finally, the prosecution cannot use discriminatory methods to choose a jury, meaning they cannot decide to exclude a juror based on their sex, religion, ethnicity, or similar traits. An example might be if a prosecutor dismissed a Mormon juror because he believed the juror would be less inclined to think the defendant, a fellow Mormon, was guilty.
“While jury selection is a critical part of a trial, this is one of the least common forms of prosecutorial misconduct in modern times simply because so few cases actually go to trial and instead are settled in a plea bargain,” explains Liss.
Investigating Misconduct Accusations in Vista
The problem of prosecutorial misconduct is particularly problematic 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, investigating these charges is often tricky since prosecutors frequently control the very evidence that must be reviewed to prove misconduct allegations. Sometimes, the District Attorney’s office makes those investigating these claims jump through hoops to review the evidence. In other cases, the prosecutor’s files are handed over, only to find that certain pieces of evidence have been 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 affected by this misconduct can file an appeal to have their conviction overturned, secure a new trial, or 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 and United States legal systems.
Prosecutors can 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 wrongly convicted due to prosecutorial misconduct can generally not sue the person responsible in civil courts, even if that person 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 fairly rare compared to other parts of the state. “I personally have seen very few, if any, instances of prosecutorial misconduct during my 40 years as a criminal defense attorney,” says Liss.
If you believe your rights were violated due to prosecutorial misconduct, please contact an attorney specializing in appeals. “Although I always strive to protect my clients as much as possible while I defend them against their charges, I typically do not handle cases where unethical behavior has already occurred since I do not do appeals,” explains Liss. 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 at the offices of Peter Liss.
