What is Prosecutorial Misconduct?


If you are facing criminal charges, it may seem to you that the state is out to get you. Your rights are sometimes eroded, law enforcement may tell you lies to get you to confess, and there a social stigma associated with facing criminal charges, regardless of whether or not you are guilty. The situation gets even worse for defendants when the prosecutor tries to infringe upon their rights while trying to secure a conviction. Prosecutors are given a great deal of power to try cases known as prosecutorial discretion because they are in the position to seek justice for crimes that have occurred. But what happens when they go beyond their legal rights? What happens when they withhold evidence or discriminate when selecting a jury? When this occurs, it is called prosecutorial misconduct.

What is Prosecutorial Misconduct?

Prosecutorial misconduct occurs when the prosecuting attorney does not act within the legal or professional ethical standards that are in place for them. Misconduct can occur in various forms during a case including, but not limited to:

  • Failure to disclose “Brady Material” – Because of a prosecutor’s large amount of power, they are responsible to disclose any exculpatory evidence (evidence that shows that the defendant is not guilty or that they should be charged with a lesser crime).
  • False evidence – Providing false evidence is a serious breach of ethics and public trust. In addition to physical evidence, this can also include things such as asking a witness to lie.
  • Improper argument – Any time a prosecutor makes an argument at an incorrect time during the case, they are engaging in prosecutorial misconduct.
  • Improper use of the media – It is illegal for a prosecutor to provide too much information to the media. Doing so can sway the general public’s opinion of the defendant and impact the case.
  • Discrimination when selecting a jury – It is illegal for a prosecutor to discriminate a juror based on sex, religion, or ethnicity.

Many people understand that when a police officer violates your rights, any evidence obtained is not admissible in court. This potential exclusion of incriminating evidence causes police officers to be more likely to respect your rights when in the performance of their duties; however, this is not the case for prosecutors. Criminal cases are rarely overturned due to misconduct by the prosecutor. Because a prosecutor holds so much power, they need to be held accountable. If a prosecutor violates your rights, they are breaking the law and should face penalties that match their level misconduct.

What is the Penalty for Prosecutorial Misconduct?

Although the act of violating a defendant’s rights can have detrimental effects on the life and well-being of the defendant, the penalties for prosecutorial misconduct are not very harsh and courts typically rule in favor of the prosecutor. When a prosecutor is found to have violated legal standards, the defendant can request that their case to be overturned; when the misconduct is ruled to be a violation of professional standards, the prosecutor may be subject to the bar complaint process. Often, an appellate court will rule that the prosecutor’s misconduct was the result of a “harmless error.” So, even when prosecutorial misconduct occurs, the prosecutor rarely faces any real punishment.

When misconduct occurs, the consequences may cause irreparable damage to your case that can even lead to you being wrongly convicted. Despite the obviously negative outcome, such misconduct is often ruled as a “harmless error” by the prosecutor, and the ruling of the case is not affected. You may be allowed to recover fees from your criminal attorney under the Hyde Act if prosecutorial misconduct occurs, but there is no real restitution from the prosecutor to you.

Why Does Prosecutorial Misconduct Occur?

The reason for misconduct is not universal, and it differs from case to case. In certain cases, the flouting of legal or ethical standards can be politically motivated, while in others it to be motivated by the desire to obtain justice for the victim. Regardless of the reason, it is never justified to take rights away from the defendant in a criminal proceeding.

There have been cases where the prosecutor knew that neither the blood type nor DNA on key pieces of evidence matched the defendant in a murder case and chose not to disclose that fact or produce the evidence. In other cases, prosecutors failed to disclose plea agreements with snitches or the use of payments for witness testimony.

The chance of misconduct is a key reason why defendants need a strong defense attorney. Without an experienced criminal defense lawyer keeping the prosecutors accountable for their actions, you stand the chance of getting your rights violated by misconduct. It is important to know your rights in the courtroom and know when your rights are being violated by a prosecutor.

Dedicated Defense Attorneys

At Berry Law, our team of skillful criminal defense lawyers are committed to protecting the rights of our clients, both inside and outside of the courtroom. Prosecutorial misconduct can be the difference between your case being dismissed and your case resulting in a conviction. If you are facing criminal charges, you may be in the most important battle of your life. Contact our team at 402-466-8444 to start fighting back today.

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