Under Colorado law, prosecutorial misconduct occurs when the district attorneys or attorneys general engage in some kind of wrongdoing, or even illegal action, during the prosecution of a criminal case. Defendants denied a fair trial due to prosecutorial misconduct can seek relief by filing a motion for a new trial and/or an appeal.
Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about prosecutorial misconduct for Colorado residents:
- 1. What is prosecutorial misconduct?
- 2. What are examples?
- 3. What consequences can the prosecutor face for misconduct?
- 4. What remedies do I have if the prosecutor engaged in misconduct?
1. What is prosecutorial misconduct?
Prosecutorial misconduct occurs when the district attorneys in Colorado engage in some kind of wrongdoing, or even illegal action during the prosecution of a criminal case. It can occur at any time, including pretrial hearings, the trial itself, or during sentencing.
Prosecutors in Colorado are expected to conduct themselves under a high standard of conduct, but often prosecutors go too far to try to get a conviction. Not all “mistakes” rise to the level of misconduct; it requires some level of:
- reckless, or
disregard for the rules and decorum expected of attorneys. 1
Prosecutorial misconduct typically falls under one of two categories:
- ethical violations – breaking the code of conduct that all attorneys are required to abide by; or
- due process violations – denying defendants constitutional requirements and protections.
These violations, in turn, can be divided into either:
- improper witness examination, which is direct- or cross-examination that unduly prejudices you or misleads the judge or jury; or
- improper argument, which is when prosecutors state inadmissible things or elicit inadmissible testimony.
It is not uncommon for prosecutors to have committed several acts of misconduct in one case.
2. What are examples?
Common examples of prosecutorial misconduct in Colorado include the following.
Intentionally seeking inadmissible answers from witnesses
This typically occurs during direct- or cross-examination during a trial. When prosecutors try to skirt the rules of evidence or defy a court order to extract unallowable testimony, we voice objections and request that the judge strike such testimony from the record and immediately instruct the jury to disregard what they heard.
We commonly see this type of misconduct when a prosecutor gets a witness to reveal that you had a past criminal conviction, which is usually inadmissible evidence because it could prejudice the jury against you. This alone could be grounds for an immediate mistrial.
Making comments about inadmissible evidence
There are rules about what types of evidence can come in or must stay out of a criminal trial. Prosecutors know this, but sometimes try to get around it by making backhanded comments about the existence of that evidence, or attempting to “casually” work it into a question or argument.
This can result in a new trial being ordered, and the prosecutor facing discipline from the Colorado Supreme Court.
Presenting false evidence
The prosecution may admit only genuine evidence. In the event they admit false evidence, they must immediately correct the situation. Depending on the situation, the introduction of false evidence could be serious enough for the judge to declare a mistrial.
Arguing facts not in evidence
It is misconduct when prosecutors argue facts that are unsupported by evidence presented at trial. If this happens, we would object in open court and potentially ask for a mistrial if what the prosecutors said was prejudicial to your case.
Intentionally misstating or mischaracterizing the law or evidence
Trial verdicts depend on the jury applying the correct law to the correct facts. If the prosecutor tries to twist the truth, we would voice an objection.
Attempting to shift the burden of proof
Criminal law is clear as to when you or the prosecution bears the burden of proof in certain circumstances, such as when proving an affirmative defense or proving the existence of an alibi. If prosecutors try to put the burden on you when it really belongs to them, we would voice an objection and ask that the judge intervene.
The most important burden of proof in criminal law lies with the prosecution: Since you are presumed innocent, the state must prove guilt beyond a reasonable doubt for a judge or jury to convict you. Any hint by the prosecution that you have the burden to prove your innocence may be grounds for an immediate mistrial.
Appealing to the passions or prejudices of a juror
Prosecutors are limited in how much they can play upon the jury’s emotions and beliefs. If they go too far – such as by showing an explicit, irrelevant photo or making an outlandish reference for no purpose other than to inflame their emotions – we would make an objection and ask the court to instruct the jury to disregard what they heard.
Violating the rules regarding cross-examination of a witness or you
Prosecutors are also limited as to what they can cross-examine witnesses and you about. If they cross the line and try to seek inadmissible testimony, we would make an objection in court.
Prosecutors commit misconduct if they insult you or your defense theories in a way that is irrelevant or undermines your presumption of innocence. Such insults or name-calling could unduly sway the jury against you without any basis in law or fact.
Vouching for a witness’s truthfulness
Prosecutors cannot comment on whether they personally believe a witness is credible. If they did, the jury may be overly impacted by their opinion rather than by the facts presented at trial.
Intimidating a witness
Prosecutors are not allowed to intimidate a witness to keep them from testifying on your behalf. This can happen when a district attorney:
- threatens a witness with criminal action (such as perjury) in order to keep them from testifying;
- has the witness deported to stop them from testifying; or
- threatens the friends or family of a potential witness to keep them from testifying.
Discriminating during jury selection
A jury must be comprised of “peers.” During jury selection, prosecutors may not discriminate on the basis of:
- ethnic, or
- other similarly protected groups.2
For example, if you are African-American, it would constitute misconduct to attempt to exclude all other African-American jurors from your panel.
Sadly, this happens in the real world all too often, but when it does it should be challenged.
Improperly commenting on your right not to testify against yourself
Prosecutors are not permitted to comment on the fact that you chose not to testify at trial or that you chose to invoke your Fifth Amendment right against self-incrimination after being arrested.3 If prosecutors try to imply that you would have spoken up if you were innocent, we will call for an immediate mistrial.
Remaining silent does not mean you are guilty. Furthermore, the police have a long history of twisting defendants’ innocent words and coercing false confessions in interrogation rooms; likewise, skilled prosecutors can often extract a false confession during cross-examination. Therefore, keeping quiet is usually the safest bet if you are facing criminal charges.
Failing to disclose evidence to you which is favorable to you
Perhaps the most important function of prosecutors is to disclose to you all the evidence that is exculpatory, meaning favorable to your case and suggesting your innocence. If prosecutors fail to turn over such evidence (called a Brady violation), we may be able to get the verdict overturned.4
Appealing to religious authority
Prosecutors cannot invoke how the Bible called for the death penalty. This misconduct – which typically occurs in the sentencing phase of a death penalty case – runs afoul of the separation between church and state.
Presenting inconsistent theories
If you and an alleged co-conspirator are tried separately for the same offense, it would be misconduct for the prosecutor to advance separate theories in your cases. For example, the prosecutor cannot claim in your trial that you acted alone and then argue in the co-conspirator’s trial that you acted together.
Testifying for an absent witness
You have the right to confront and cross-examine anyone who takes the witness stand against you. Therefore, you would be denied of this right if a prosecutor opines on what a third-party who never testified would have said had they taken the stand.
Giving a personal opinion
Prosecutors may make inferences based on the evidence, but they cannot give personal opinions. If a prosecutor gives their personal opinion, the jury may take that as fact even if it is not based on admissible evidence.
Misconduct during closing arguments
During closing arguments, prosecutors cannot comment beyond the admissible evidence, any inferences that can be drawn therefrom, and the jury instructions. An example of misconduct during closing arguments is telling the jury that if you get convicted, you can still get a new trial if new evidence emerges.
3. What consequences can the prosecutor face for misconduct?
If the prosecutor engages in misconduct, they run the risk of:
- having to retry the case;
- receiving admonishment from the Colorado Supreme Court; or
- formal discipline for violation of the Colorado Rules of Professional Conduct for attorneys.5
This can greatly affect a prosecutor’s career, especially if the media catches wind of the prosecutor’s bad acts.
4. What remedies do I have if the prosecutor engaged in misconduct?
If the prosecutor engaged in substantial misconduct which affected the outcome of the case, you can move for a new trial by:
- filing a motion for a new trial;
- filing an appeal.
Courts apply the “harmless error” doctrine to determine whether a prosecutor’s misconduct prejudiced you and denied you a fair trial. Specifically, they analyze:
- the misconduct’s frequency and severity;
- what the trial court did – if anything – to minimize or cure the misconduct; and
- whether the misconduct was material to you getting convicted.
If the court finds that the prosecutors’ misconduct did substantially affect your case, and the outcome of the case was changed as a result of the misconduct, a new trial may be ordered. If the court finds that the D.A.’s misconduct did not affect your verdict – even if the misconduct was egregious – then the lower court verdict/sentencing will stand.
As criminal defense attorneys, one of our most important functions is objecting in open court every time the prosecution commits misconduct. Even if the judge overrules our objection, we are making a record we can then use in a motion for a new case or during appeals.
4.1 My criminal case was tried by a different attorney. Can you represent me on my appeal?
Yes. Just because another attorney represented you at trial does not mean that you have to use the same attorney on appeal. In fact, for a number of reasons, it is often a good idea to hire a different attorney for a motion for new trial or an appeal.
If the attorney in your criminal trial failed to object when the D.A. committed misconduct, we can ask for a new trial on the basis of “ineffective assistance of counsel.”
- Public Integrity.org. Misconduct and Punishment. See also People v. Buckner (Colo. App. 2022) 509 P.3d 452; People v. Monroe (Colo. 2020) 468 P.3d 1273.
- Cerrone v. People, 900 P.2d 45 (1995) (outlining process for determining jury selection discrimination and finding that discrimination in fact occurred but did not require that convictions be reversed).
- U.S. Const. Amend. V (No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.)
- Brady v. Maryland (1963) 373 U.S. 83.
- Colorado Bar Association. Colorado Rules of Professional Conduct.