Types of Prosecutorial Misconduc

3-31-17 National:

Prosecutors commit misconduct when in the course of their professional duties they act in ways that are inconsistent with ethical mandates they are obliged to obey. Such misconduct exists at and near the intersection of two sets of rules: one is the legal rules that bind prosecutors so as to ensure due process – the state and federal constitution, statutory law, rules of criminal procedure, judicial orders, and the like. The other is the ethical standards of the legal profession as expressed in each state bar’s rules of professional responsibility and similar professional codes.

Often an act of prosecutorial misconduct will violate both legal and professional codes. Though, because the codes differ in some ways, sometimes an act of misconduct may violate one code but not the other. Prosecutors are required to abide by both.

Enforcement of the two codes differs. When prosecutors violate legal rules as part of a criminal case, the primary recourse is for the criminal defendant to ask to have his conviction overturned (or if the trial is in progress, to ask the judge for a mistrial, to strike matters from the record, or to otherwise minimize the damage caused). When prosecutors violate professional rules, the bar complaint process is the primary enforcement mechanism.

Types of Misconduct
Below is a list of some common types of prosecutorial misconduct. Prosecutorial misconduct comes in many forms, and this list is not meant to be exhaustive, nor is it designed to preclude other ways of describing and classifying misconduct.


Failure to disclose exculpatory evidence

In Brady v. Maryland and a line of subsequent cases, the U.S. Supreme Court has held that the U.S. Constitution requires that prosecutors turn over to the defense evidence that tends to show the defendant is not guilty or deserves a lesser punishment. The failure to disclose “Brady material” is one common form of prosecutorial misconduct. This behavior also frequently violates professional rules which prohibit lawyers from disobeying obligations, obstructing access to evidence, and failing to comply with discovery, as well as professional rules which require prosecutors to make timely disclosure of all information that tends to negate guilt or mitigate punishment. (See, e.g., ABA Model Rules 3.4, 3.8, and 8.4) To learn more about the failure to disclose and Brady-type prosecutorial misconduct click here.

Introduction of false evidence

In several cases including Napue v. Illinois, the U.S. Supreme Court has held that the U.S. Constitution prohibits prosecutors from introducing false evidence, including false testimony, and requires prosecutors to correct falsehoods. Such behavior may also violate professional rules which prohibit attorneys from offering evidence the lawyer knows to be false, assisting or inducing a witness to testify falsely, or eliciting false testimony without taking measures to correct it. (See, e.g., ABA Model Rules 3.3, 3.4, and 8.4) Because misconduct involving false evidence also frequently involves the failure to disclose (see above), you might find our page about Brady helpful.


Improper argument

In opening and closing statements at trial (and other similar circumstances), a prosecutor’s use of certain types of prohibited modes of argument may constitute prosecutorial misconduct. For example, a prosecutor may not: assert facts not in evidence, misstate the law, vouch for the credibility of a witness, mischaracterize evidence, criticize the defendant for exercising his constitutional right not to testify, or engage in other similar prohibited behavior. This type of misconduct may violate federal and state constitutions as well as professional rules which prohibit these types of arguments. (See, e.g., ABA Model Rules 3.3 and 3.4)

Discrimination in jury selection

When selecting a jury, prosecutors are prohibited from excluding potential jurors based on certain characteristics, including race, sex, ethnicity, religion, and other similar characteristics. When prosecutors do this, they violate the defendant’s constitutional rights as well as the constitutional rights of the prospective juror. This comes to light most commonly when African American or Latino prospective jurors are struck because the prosecution assumes that such jurors will be more sympathetic to a similar-raced defendant, more skeptical of authorities, or more lenient generally. Lawyers sometimes refer to a prosecutor’s discriminatory exclusion of racial minorities from a jury as a Batson violation, named after the Supreme Court case Batson v. Kentucky which established some rules to address the problem.


Interference with a defendant’s right to representation

Though they have positions of authority, prosecutors are not neutral, they are participants in adversarial proceedings against criminal defendants. Prosecutors also are also sophisticated, repeat players in a criminal justice system that may be foreign, confusing and terrifying to defendants. Prosecutors may not discourage defendants from obtaining counsel, nor may prosecutors take advantage of a defendant who has not yet had the opportunity to avail himself of counsel. If a prosecutor knows that a defendant is represented, the prosecutor may not speak to a defendant about his case without the defendant’s attorney present. (See, e.g., ABA Model Rules 3.8(b), 3.8(c), 4.2 and 4.3)


Improper communications with a judge or juror

Rules restrict the types of interactions that all attorneys, including prosecutors, may have with a judge or juror. For example there are rules which regulate ex parte communication with judges – that is, an attorney communication with a judge where the opposing counsel is not present. Similarly, during trial, it is generally improper for a prosecutor or any attorney to communicate with jurors in any manner other than before the judge, on the record. Furthermore, it is unethical and illegal for a prosecutor or any attorney to attempt to influence a judge or juror with improper inducements. (See, e.g., ABA Model Rules 3.5 and 8.4)


Improper use of the media

Cases are meant to be tried in court, based on evidence, not in the press. Rules broadly prohibit prosecutors from engaging in public communications that may prejudice the defendant’s case or heighten public condemnation of the accused. Other than the basic details about a crime, most public communications about the defendant or the defendant’s case are improper and constitute prosecutorial misconduct. (See, e.g., ABA Model Rules 3.6 and 3.8(f))


Failure to train subordinates and maintain systems of compliance

Prosecutors who have managerial responsibilities in district attorneys offices have a professional obligation to create systems in those offices that ensure that all lawyer and nonlawyer professionals are aware of and comply with rules of professional conduct. Prosecutors who supervise subordinates may not encourage or ratify misconduct by subordinates and must make reasonable efforts to ensure that subordinates abide by ethical rules. (See, e.g., ABA Model Rules 5.1, 5.3 and 8.4(a))


Failure to report a violation of the rules of professional responsibility

In many states, professional rules require that members of the bar inform the appropriate authorities if they become aware that another attorney has committed a serious violation of those professional rules. When prosecutors witness or learn of misconduct and fail to report it, in certain instances, they too may be guilty of misconduct. (See, e.g. ABA Model Rules 3.8)


This list is not meant to be exhaustive. There are other types of prosecutorial misconduct. We will continue to add to this list to give readers a better understanding of the various forms such misconduct takes.