State and Federal Prosecutors: What Happens When They’re Not Just?

One of the most disconcerting things for a defendant to face is when they sit in trial for a crime they allegedly committed and see the prosecutor engaging in behavior that is wrong in every sense of the word. The legal term is “prosecutorial misconduct” and it can occur at any point during criminal proceedings including the investigation phase, pretrial phase and jury trial phase.  Both state and federal prosecutors can let their power go to their head and become consumed with winning instead of furthering justice.  The most damaging thing about prosecutorial misconduct, however, is that if it is not handled properly, it can affect a defendant’s chances at winning their appeal.

In most states prosecutors are considered to be an extension of the hand of the law; they’re enforcing the law for the betterment of society and therefore are given discretion on how they would like to charge crimes.  Prosecutors are held to a higher standard than defense attorneys when they litigate cases due to the nature of their jobs and how much power they are given as sworn law enforcement.   In fact in 2010, the Northern California Innocence Project at Santa Clara University School of Law published a comprehensive study of prosecutorial misconduct cases in California from 1997 to 2009. Their study reviewed over 4,000 cases and found that in roughly 3,000 cases the courts declined to find misconduct in spite of the fact that the defense asserted that there was in fact misconduct. This is a shocking statistic, which truly shows how many cases can be affected by prosecutorial misconduct. Additionally, this study found that in the cases where prosecutorial misconduct was found, only very rarely did the courts and the state bar enforce punishments on the prosecutor at fault.

In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland defined prosecutorial misconduct as “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” An example of overstepping the bounds would be if a prosecutor, in their investigation of the facts surrounding a case, and they uncovered information that would exonerate the accused and they did not bring this information to light, they could be charged with prosecutorial misconduct.

An example landmark case of prosecutorial misconduct was Brady v. Maryland 373 U.S. 83 (1963). In this case, the prosecutor’s suppressed evidence that was favorable to the defendant and that, if disclosed, may have lead to a verdict of not guilty.  In this case, the prosecution had an admission from the defendant that he was involved in the murder but had not committed the murder himself. The prosecution had a note in which the defendant’s associate stated that he was the one who committed the murder and they withheld this information from the defense team and the court. From this case came the well-known “Brady disclosure” requirements, these requirements state that the prosecution disclose material exculpatory evidence to the defense. In this case the exculpatory evidence includes but is not limited to evidence that is beneficial or favorable to the defendant– evidence that goes towards negating the defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

In short, prosecutorial misconduct is an issue that many defendant’s have the potential to deal with and it is imperative that a defense attorney know how to handle it so as not to jeopardize future appeal issues.  This is a key reason to why a person who is charged with a crime needs to hire and experienced criminal defense attorney to handle their case.


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