In jurisprudence, prosecutorial misconduct is “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.”It is similar to selective prosecution. Prosecutors are bound by a sets of rules which outline fair and dispassionate conduct.

Abuses of discretion

Prosecutors are given discretion about how they conduct their business. However, while some practices are not illegal, they may be seen as unethical and/or abusive and in need of reform, particularly by defendants and criminal defense attorneys:

  • Selective prosecution by race, income, political affiliation, etc.
  • Capture of the grand jury, misusing it as a tool for inquisitorial abuse, or excluding citizen complaints from being heard.
  • Plea bargaining abuses, such as seeking testimony in exchange for leniency. This may solicit perjury or falsified evidence.
  • “Horsetrading”, the practice of colluding with defense attorneys to agree to get some of their clients to plead guilty in exchange for letting others off.
  • Threatening public officials, especially judges, with prosecution if they don’t unduly support their cases.
  • Tainting of jury pools with public statements by prosecutors that are either inaccurate, exaggerated, unsupported by evidence or that could be inadmissible at trial, and such statements become widely promulgated by the media.
  • Prosecutors causing depositions in a related civil trial which were likely to yield exculpatory evidence, and then “staying” those statements so they cannot be used in a criminal trial.
  • Prosecutors naming a host of “un-indicted co-conspirators” in conspiracy cases to intimidate potential defense witnesses with threats of retaliatory prosecution.
  • Prosecutors using their Peremptory Challenges to remove from the jury anyone with relevant experience in the complex subjects of a trial. Defense attorneys often use similar tactics. Both attempt to prevent a juror’s technical knowledge from interfering with the credibility of their expert witnesses.
  • Prosecutors pursuing criminal penalties for selected industry practices in Corporate America when regulatory intervention would be more appropriate. For example, prosecuting a mechanic for minor violations of the Clean Water Act rather than affording the opportunity for the mechanic to correct their error and pay the appropriate fines.
  • Prosecutors using multidefendant trials to get defendants to turn on one another in the courtroom, as judges may be reluctant to allow separate trials in multi-defendant cases.

Examples and remedies

In late 1993, the 6th US Circuit Court of Appeals ruled that John Demjanjuk had been a victim of prosecutorial misconduct during a 1986 trial in which federal prosecutors withheld evidence. Demjanjuk’s sentence was overturned, but he lost when his case was retried.

In the 1995 murder trial of O. J. Simpson, the defense argued that Los Angeles Police Department detective Mark Fuhrman had planted evidence at the crime scene. Although Fuhrman denied the allegations, Simpson was found not guilty, although he was later held liable for the deaths in a civil suit filed by the families of the victims. In USA Today (August 24, 1995), Francis Fukuyamastated, “[Such defenses lead to] a distrust of government and the belief that public authorities are in a vast conspiracy to violate the rights of individuals.” However, such misconduct may actually be widespread in the United States. “It’s a result-oriented process today, fairness be damned,” Robert Merkle, former U.S. Attorney for the Middle District of Florida, said.Prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions, and the doctrine of harmless error can be used by appellate courts to uphold convictions despite such illegal tactics, which some argue gives prosecutors few incentives to comply with the law.

A more recent example of prosecutorial misconduct can be seen in the 2006 Duke lacrosse case. In that incident, members of the Duke University men’s lacrosse team hired a female stripperfor a team party. She went on to accuse three players of raping her at that party. Making the case even more volatile was the fact that the stripper was black and the three accused players were white. The actions of the prosecutor in this case, Mike Nifong, drew enormous criticism, as he proceeded with the case despite numerous inconsistencies in the accuser’s story, a lack of DNA evidence conclusively linking any player to any sexual assault, and at least two of the accused having solid alibis. He also made numerous inflammatory statements to the media. The case against the players eventually collapsed; all charges were dropped, and the North Carolina Attorney General took the unusual step of declaring the players innocent. The North Carolina State Bar eventually disbarred Nifong for his actions during this case.

In 2011 a Texas man, Michael Morton was released from prison after serving nearly 25 years for the murder of his wife in 1987. He was released after DNA evidence pointed to another man as the killer. The prosecutor, Ken Anderson later plead guilty to withholding evidence that could have helped Morton fight the murder charge. He was sentenced to spend 10 days in jail and was also disbarred.

Despite such, the defense has been successful in roughly 1 out of 6 times it has been used from 1970 to 2003. During that period, judges have cited misconduct by prosecutors as a reason to dismiss charges, reverse convictions, or reduce sentences in 2,012 cases, according to a study by the Center for Public Integrity released in 2003; the researchers looked at 11,452 cases in which misconduct was alleged.

A debate persists over the meaning of the term. Prosecutors have asked judges to stop using the term to refer to an unintentional error, and to restrict its use to describe a breach of professional ethics. E. Norman Veasey, the chief justice of Delaware Supreme Court, answered one such request in 2003 by noting the term’s extensive use in rulings over the past 60 years. “We believe it would be confusing to change the terminology in view of this history,” he wrote in reply.

Prosecutors wield more power than any other actors in the criminal justice system. They have unreviewable power to go forward with a case or dismiss charges, to cut a deal with a defendant for a guilty plea or stand pat, and to recommend a severe sentence or plead for leniency. Unchecked power is always subject to abuse, and prosecutors sometimes engage in misconduct. Prosecutorial misconduct weakens the public’s perception of the integrity of the legal system and undermines the ability of the courts to achieve justice.

Politically motivated prosecutions

Given the breadth of criminal law, prosecutors can find reason to prosecute just about anybody if they have the time, the money, and the motive. Critics of independent counsel Kenneth Starr’s prosecution of President Clinton allege that Starr’s primary motive for prosecution related to matters other than Clinton’s alleged perjury. Anthony Lewis, a columnist for the New York Times, calls Starr’s prosecution of Clinton “politics dressed as law.” Lewis claims no other prosecutor in the United States would have gone forward with a prosecution of a citizen for false testimony about sex in a civil case. In Lewis’s opinion, few citizens have led such unblemished lives as to prevent a determined prosecutor from finding some basis for an indictment or information.

Suppressing evidence favorable to the defendant

Sometimes prosecutors, in their zeal to obtain a conviction, fail to turn over factual evidence that is favorable to the defendant when the evidence is material to guilt or punishment. One of the greatest threats to rational and fair fact‐finding in criminal cases comes from a prosecutor’s hiding evidence that might prove a defendant’s innocence. Between 1963, when the U.S. Supreme Court ruled in Brady v. Maryland that such a practice is a deprivation of due process, and 1999, at least 381 defendants nationally had a homicide conviction thrown out because prosecutors concealed evidence. Of the 381 defendants, 67 had been sentenced to death. The consequences of such misconduct when it is discovered can be serious. Convictions are reversed, cases are retried, appeals are brought that cost taxpayers millions of dollars, and public confidence in prosecutors is undermined.

Suborning perjury

When prosecutors knowingly allow the use of perjured testimony, a defendant’s right to a fair trial is violated. The Supreme Court first established this rule inMooney v. Holoban (1935), in which the Court said that the deliberate use of perjured testimony by the prosecutor and the deliberate nondisclosure of evidence that would have impeached such perjury violated the defendant’s right to a fair trial. Ethically, a lawyer can’t call a witness who he or she knows is going to lie. To do so is called suborning perjury. Critics of former Los Angeles district attorney Marcia Clark claim that she knew that police officer Mark Fuhrman (who said he had found a bloody glove behind O.J. Simpson’s residence) was going to lie on the witness stand about not having used the “N” word. Clark’s decision to call Fuhrman to testify may have lost the Simpson case because it opened the door for Simpson’s defense team to expose Furhrman’s perjury to the jury, thereby raising reasonable doubts in the jurors’ minds about the credibility of the testimony of police officers in this case.

Controlling prosecutorial misconduct

Sanctions for prosecutorial misconduct include appellate reversal of convictions, finding the prosecutor in contempt of court, referring the prosecutor to a bar association grievance committee, and removing the prosecutor from office.

In the view of legal analyst Bennett Gershman, prosecutorial misconduct persists because of the unavailability or inadequacy of penalties visited upon the prosecutor personally in the event of unethical behavior. Although an appellate court can punish a prosecutor by telling him or her not to act in the same way again or by reversing a conviction, such sanctions don’t hold the prosecutor personally accountable. During the course of a trial, the prosecutor is absolutely immune from any civil liability that might arise due to his or her official conduct. Moreover, appellate courts can affirm a conviction despite the presence of serious prosecutorial misconduct by merely invoking the harmless error doctrine. Under this doctrine, an appellate court determines that errors were of such a minor or trivial nature that they didn’t harm the defendant’s rights.