Prosecutorial Misconduct – The State Abuses Its Power

Prosecutorial misconduct refers to unethical or unlawful tactics by prosecutors in a criminal case, such as

• withholding exculpatory evidence from you (the defendant),
• making false statements, or
• presenting inadmissible evidence to the jury.

Prosecutors found to have committed misconduct can be disciplined, and you may be entitled to relief such as a case dismissal, favorable jury instructions, or a new trial.

Prosecutorial misconduct is not limited to what happens in a criminal trial. It can take place at any stage of the criminal court process, such as at:

• the arraignment,
• pretrial proceedings and
• the sentencing hearing.

Note that malicious prosecution refers to something different than prosecutorial misconduct. The phrase refers to a criminal or civil case that gets filed without any lawful foundation or basis for it.

In this article, our criminal defense attorneys will highlight the following:

• 1. Types of Prosecutorial Misconduct
• 2. Remedies
• 3. Malicious Prosecution
• 4. Suing Prosecutors
• 5. California Law
• Additional Reading

1. Types of Prosecutorial Misconduct

As discussed below, there are four main types of prosecutorial misconduct. These are:

1. failure to disclose exculpatory evidence,
2. introducing false evidence,
3. using improper arguments, and
4. discriminating in jury selection.

1) Failure to Disclose Exculpatory Evidence

Prosecutors have a duty to give you (the defendant) exculpatory evidence, which is evidence suggesting that you are not guilty and that you deserve a lesser sentence.¹

This evidence is often referred to as “Brady material” from the case Brady v. Maryland. A prosecutor’s failure to turn over exculpatory evidence is a Brady violation and can lead to a finding of misconduct.

Example: Doug is charged with rape, which he denies. The prosecutor buries a witness’s statement revealing he may be an alibi for Doug. This is prosecutorial misconduct since the prosecutor is withholding evidence in violation of Doug’s rights.

You can try to obtain exculpatory material by bringing a Brady motion with the court.

2) Introducing False Evidence

It is misconduct if a prosecutor knowingly introduces hearsay, character evidence, false testimony, or any other evidence that is false or inadmissible.²

Example: A prosecutor’s only evidence in a felony hit and run case is testimony from a law enforcement officer claiming the defendant confessed. The problem is that the prosecutor knows that the officer is lying. It would be misconduct if the prosecutor lets the officer commit perjury on the stand. 

3) Using Improper Arguments

There are several types of arguments that a prosecutor cannot make during a criminal case. For example, prosecutors cannot:

• assert facts not in evidence,
• comment on your (the defendant’s) decision not to testify,
• express personal opinions about evidence or matters in a case, and
• give inflammatory comments.

We discuss each of these below. Note that this type of misconduct often occurs in the prosecutor’s opening argument or closing argument.

Asserting Facts Not in Evidence

In a criminal trial, both the prosecutor and defense counsel have to provide evidence for any facts they wish to assert. It is misconduct, then, if the prosecutor refers to a fact for which there is no evidence.³

Example: Nia is on trial for a violent robbery. During closing remarks at trial, the prosecutor tells the jury that violent crime has declined significantly in the neighborhood where the robbery occurred since Nia has been locked up. The prosecutor committed prosecutorial misconduct because he never introduced any evidence during the trial to support that crime statistic.

Commenting on the Defendant’s Failure to Testify

A prosecutor can never comment on your choice not to testify in your criminal case. It is your Fifth Amendment right to remain silent.

It is prosecutor misconduct, then, if:

• you exercise your right not to testify, and
• the prosecutor comments about it.⁴

Expressing Personal Opinions

A prosecutor commits misconduct by expressing their personal opinion about some matter in a trial.⁵ Note, though, that not every opinion will result in misconduct.

For example, a prosecutor may opine on your guilt and the credibility of a witness as long as it is based on actual evidence produced at trial. However, unfounded opinions may lead to a finding of misconduct.⁶

Inflammatory Comments

It is prosecutorial misconduct to make inflammatory comments that are dramatic and appeal to the passions of the jury.⁷

An example is when the district attorney argues for so-called “safe streets.” This is an appeal to the jury’s general fear of crime rather than the evidence that you committed a crime.

Example: During a child molestation trial’s closing arguments, the prosecutor comments, “None of your own children will be safe if you let a predator like this back on the street.” The prosecutor committed misconduct by making a “safe streets” argument. 

4) Discrimination in Jury Selection

Prosecutors can never discriminate when selecting a jury.⁸ This means a prosecutor cannot exclude a potential juror from a case because of their:

• sex,
• religion,
• ethnicity, or
• some other similar trait.⁹

Discriminatory jury selection not only is misconduct but also violates:

• your Sixth Amendment right to a fair trial and
• the juror’s rights under the Equal Protection Clause of the Fourteenth Amendment.

Example: The prosecutor is trying to convict a black man for murdering a white man. The prosecutor believes white jurors will be more likely to convict, so during jury selection, the prosecutor excludes all people of color based solely on their race. This is prosecutorial misconduct.

Fortunately, there are remedies for a defendant who is denied due process by the District Attorney’s Office or the Attorney General.

2. Remedies

Common remedies in cases of prosecutorial misconduct include the judge:

1. dismissing the charges against you,
2. warning the jury to disregard certain evidence or comments, or
3. granting you a new trial (as long as you bring a motion for a new trial prior to sentencing).

As discussed below, however, these remedies are available only if:

1. the misconduct prejudiced you, and
2. you (or your attorney) objected to the misconduct.

1. The Misconduct Prejudiced You

Prosecutorial misconduct will not result in a remedy unless it prejudiced you. This means that the misconduct must have had a material impact on the trial outcome.¹⁰

Furthermore, misconduct will not be deemed prejudicial if:

1. the evidence against you was so overwhelming, and
2. the trial outcome would have been the same even without the misconduct.¹¹

2. You Objected to the Misconduct

In most cases, you cannot challenge a finding of misconduct unless you (or your attorney) objected to it when the misconduct occurred.¹²

The reasoning behind this rule is that if you objected to the misconduct at the time it happened, the judge could have instructed the jury to disregard it. This instruction would have prevented prejudice and removed the need for a new trial.

Note that if your attorney made no timely objection, you may be able to try to get a new trial on the grounds of ineffective assistance of counsel.

3. Malicious Prosecution

The term “malicious prosecution” refers to knowingly bringing a frivolous criminal charge or civil lawsuit. Common reasons prosecutors and plaintiffs engage in malicious prosecution include:

• harassment,
• political gain, or
• protection for the real wrongdoer.

Malicious prosecution is a crime as well as a civil cause of action.

Prosecutors who engaged in misconduct can be sued.

4. Suing Prosecutors

You can sue a prosecutor in civil court for malicious prosecution if:

1. the prosecutor filed a frivolous charge against you, and
2. you suffered some type of damages as a result.

Common damages include:

• financial losses,
• reputational damage,
• pain and suffering, and
• attorney’s fees.

In addition, you can report the prosecutor’s misconduct to the state bar. Depending on the case, the prosecutor may lose their law license.

5. California Law

Like all states, California law forbids prosecutors from engaging in misconduct. Furthermore, Penal Code 1181 PC allows the judge to declare a mistrial and grant you a new trial if:

1. the misconduct prejudiced the outcome of your case (not “harmless error”), and
2. you (or your defense attorney) objected to the misconduct at trial.¹³

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Prosecutorial Misconduct in the Digital Age – Albany Law Review.
• Prosecutor Misconduct and Good Faith Error: A Reanalysis of Two Studies in California and Texas – Texas State University dissertation.
• Prosecutorial Misconduct in Death Penalty Cases – California Western Law Review.
• Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 – Northern California Innocence Project Publications.
• Retooling and Coordinating the Approach to Prosecutorial Misconduct – Rutgers University Law Review.

Legal References: