The term prosecutorial misconduct encompasses a range of improper behaviors that violate the rules of court or ethical standards associated with the practice of law. Examples of prosecutorial misconduct characterized as courtroom misconduct include making inflammatory remarks in front of the jury, attempting to introduce inadmissible evidence, making improper statements during closing arguments, and expressing bias against the defendant or defendant’s counsel. Misconduct can also be characterized as evidence-related. This category of misconduct includes withholding evidence or mishandling evidence (i.e., tampering with or destroying evidence) or failing to disclose exculpatory evidence. Data provided by the Center for Public Integrity indicate that in over 2,000 cases reported since 1970, prosecutorial misconduct was cited in judicial review as a factor when dismissing charges, reversing convictions, or reducing sentences. This finding raises awareness of the potential impact of prosecutorial misconduct on various aspects of the trial process from pretrial issues to jury decision making.
Standard for Review
Most claims of prosecutorial misconduct are reviewed under the harmless error doctrine. Review for harmless error involves a complex test that applies to procedural rules as well as federal and state laws. The doctrine is used when a petitioner appeals a decision on the grounds that a legal error was made that resulted in an incorrect jury verdict or judicial decision. When a claim of prosecutorial misconduct is made, the appellate court is required to weigh the claim of impropriety against the fairness of the procedure. Appellate review of prosecutorial misconduct will consist of determining whether the error was significant enough to strike down the decision reached by the trial court. If the appellate court rules the error harmless, it is affirming that the error was not sufficient to affect the decision reached at the trial court level. If the error is ruled as serious, the reviewing court will set aside the trial court’s decision. In the event that an error is held as serious, the appellate court may order a new trial for the defendant.
A ruling of misconduct will not always grant relief for the defendant, however, as the court can rule that the prosecutor’s acts, while deemed improper, did not undermine the fairness of the process or confidence in the jury’s verdict. For example, in 1985 the 11th Circuit Court of Appeals addressed multiple claims of prosecutorial misconduct during closing argument brought forward by the defendant in Brooks v. Kemp. While acknowledging the prosecutor’s statements as improper, the review court determined that the statements did not render the sentencing phase unfair. The court reasoned that the improper statements were mitigated by other arguments made to the jury and remedied by jury instructions. It concluded that the prosecutorial misconduct would not have changed the outcome of the trial, hence the sentencing phase was not fundamentally unfair. Reviewing courts must therefore determine when a prosecutor’s courtroom misconduct is sufficient to affect the defendant’s right to due process and grant the defendant some type of remedy as a result.
Types of Prosecutorial Misconduct
Prosecutorial misconduct can take place throughout various stages of the trial process. One of the most common forms of prosecutorial misconduct addresses evidence-related issues. In general, it is misconduct for a prosecutor to withhold, alter, or mishandle evidence (tampering with or destroying evidence). Specifically, prosecutors are required to disclose to the defense evidence that is considered exculpatory (evidence likely to prove someone’s innocence). By the same token, it is considered misconduct for a prosecutor to fail to preserve evidence or attempt to introduce evidence deemed inadmissible in court. It is also considered misconduct for prosecutors to use evidence to mislead the jury. Misconduct that focuses on the defendant, individuals involved with the defendant’s case, and/or witness-related issues can occur either before trial or during trial. For example, it is misconduct for a prosecutor to make prejudicial comments about the defendant both before trial as well as during opening statements and closing arguments. Prosecutors are also not allowed to comment on a defendant’s failure to testify. It is also considered misconduct for prosecutors to comment on the relationships between the defendant and codefendants. In addition, expressing doubt about defense counsel and/or expressing dissatisfaction with witnesses brought forward by the defense are also considered misconduct. Overall, any comments that question whether a defendant’s due process rights have been challenged can be considered misconduct. Prosecutorial misconduct results in relief for the defendant if the review court rules that the prejudice caused by the misconduct is sufficient to affect the defendant’s right to due process.
Prosecutorial Misconduct in Closing Argument
A final type of courtroom prosecutorial misconduct is identified as prosecutorial misconduct in closing argument. The concern among legal scholars is that this type of misconduct has the potential to influence not only the jury decision-making process but also the jury’s perceptions about the possible consequences of its choices. That being said, the potential impact of the prosecutor’s improper comments on the jury is magnified in cases involving the death penalty. Although very little social science research has investigated the consequences of improper prosecutor argument, research conducted by Judith Platania and Gary Moran has linked improper prosecutor argument to greater incidences of death penalty recommendations compared to proper argument. As a result, occurrences of prosecutorial misconduct in closing argument appear to present considerable risks to defendants in capital cases.
The scope of prosecutorial argument deemed permissible has yet to be officially established; however, general guidelines for defining improper prosecutor argument have been provided by lower courts. In general, it is considered misconduct for a prosecutor to make improper suggestions, implications, and personal assertions during closing argument. The following themes presented in argument have been ruled as improper in cases involving claims of prosecutorial misconduct in closing argument: It is improper for a prosecutor to express a personal belief or opinion with respect to the defendant’s guilt. In the case of a capital trial, it is considered misconduct for a prosecutor to express a personal belief in the death penalty.
It is also considered improper to ask the jury to appeal to a religious authority as this is seen as a mischaracterization of the jury’s role in the decision-making process. It is also improper for a prosecutor to appeal to the passion of the jury, for example, referencing a defendant’s social or religious background. In addition, it is improper for prosecutors to misstate the law and to reference facts not in evidence. Arguing that mitigating circumstances are exaggerated and irrelevant to sentence determination has also been determined to be improper. Finally, it is considered misconduct for prosecutors to focus on the suffering of the victims and their families and appeal to the jury for sympathy for the victim. Overall, rulings on improper prosecutor argument appear to distinguish between those that are determined to have undermined the fairness of the trial process and those that did not. Often, the basis for determining that improper prosecutor argument does not threaten a defendant’s due process rights is the remedy utilized by the trial court to mitigate the damaging effects of the misconduct.
Prosecutorial Misconduct Remedies
Due process is ensured when review courts exercise remedies to counter the effects of prosecutorial misconduct. Remedies for prosecutorial misconduct include dismissing charges, reversing convictions, or reducing sentences. When challenges are made to improper prosecutor argument, remedies are sought through a curative instruction to the jury that raises issue with improper statements during closing argument. The efficacy of a jury instruction relies on the review court’s consideration of the defense attorney’s objection to the statement and an instruction to the jury addressing the impropriety of the prosecutor statement as well as an instruction to disregard the statement. The timing of the curative instruction is critical to neutralizing the effects of improper prosecutor argument. In other words, an effective curative instruction should immediately follow the defense attorney’s objection and address the impropriety of the statement as well as a subsequent instruction to the jury to disregard the statement.
There is no standard for review for cases involving the use of jury instructions as a remedy to prosecutorial misconduct in closing argument. For example, in the 1991 case of United States v. Solivan, the 6th Circuit Court of Appeals ruled that the jury instructions used to mitigate the prejudicial statements made by the prosecutor were ineffective. The court also addressed the timing of the instructions by stating that instructions were administered too late to refute the effect of the statements. The court specifically stated that statements made by the prosecutor in closing argument were severe enough to prejudice the defendant. It also stated that it could not unequivocally conclude that the improper statements did not contribute to the defendant’s conviction. In the same way, defense attorney objections to improper argument are also critical to appellate courts when reviewing claims of improper prosecutor argument. Review courts will often find that absent objection, improper prosecutor argument did not affect the outcome of the trial. Thus, the result of a harmless error analysis is based on the circumstances of each case. This analysis often considers whether and to what extent improper prosecutor argument is curtailed by either defense attorney objection, a timely curative instruction, or both.
There is a great deal of legal commentary with respect to remedies to prosecutorial misconduct in addition to those related to improper argument. Much of the discussion centers on the prevalence of prosecutorial misconduct and the lack of an effective remedy for instances of misconduct. Legal scholars have suggested specific remedies in addition to those offered as relief to defendants when misconduct occurs within the trial process. Some of these suggestions are offered in the context of sanctions and include criminal prosecution, disciplinary action, and charging the prosecutor with contempt. From a systems perspective, discussion of procedures for curbing misconduct have centered on establishing more rigorous methods to report instances of misconduct within the justice system. To address misconduct that occurs within the trial process, recommendations include more succinct methods for investigating and interpreting misconduct at the review court level.
1. Henning, Peter J. “Prosecutorial Misconduct and Constitutional Remedies.” Washington University Law Quarterly, v.77 (1999).
2. Platania, Judith and Gary P. Moran. “Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials.” Law and Human Behavior, v.23 (1999).
3. Platania, Judith and Rachel Small. “Instructions as a Safeguard Against Prosecutorial Misconduct
4. in Capital Sentencing.” Applied Psychology in Criminal Justice, v.6/2 (2010).
5. Scheck, Barry. “Better Remedies Needed on Prosecutorial Misconduct.” http://gritsforbreakfast.blogspot.com/2012/05/scheck-better-remedies-needed-on.html (Accessed September 2013).
6. Uribe, Sandra. “A Primer on Alleging Prosecutorial Misconduct on Appeal.” http://www.capcentral.org/criminal/articles/docs/primer_da_misconduct.pdf (Accessed September 2013).
7. Weinburg, Steve. “Breaking the Rules: Who Suffers When a Prosecutor is Cited for Misconduct.” The Center for Public Integrity. (2008). http://www.publicintegrity.org/2003/06/26/5517/breaking-rules (Accessed September 2013).
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