Prosecutorial Misconduct

Prosecutorial misconduct is the act of breaking the law, or a code of ethics, while working as a prosecutor. Prosecutors are responsible for determining who should be held accountable when a crime is committed. An example of prosecutorial misconduct might occur if a prosecutor failed to turn evidence, which would prove the defendant’s innocence, to the defense attorney, choosing instead to convict the defendant and win the case. To explore this concept, consider the following prosecutorial misconduct definition.

Definition of Prosecutorial Misconduct


  1. The act of breaking the law, court rules, or code of ethics of law practice, while working as a prosecuting attorney.

Types of Prosecutorial Misconduct

Prosecutors may engage in a wide variety of illegal and unethical acts in the name of getting a conviction. What follows are several types of prosecutorial misconduct. This kind of behavior can vary from case to case, but the types of prosecutorial misconduct presented in this list are some of the more common examples of prosecutorial misconduct.

Failure to Disclose Exculpatory Evidence

Prosecutors are bound by law to turn over any evidence to the defense that shows that either their defendant is not guilty, or that he deserves a lesser punishment. This type of evidence is referred to as “Brady material,” after the case Brady v. Maryland. In this example of prosecutorial misconduct, the Supreme Court ruled that the prosecutors are required by the Constitution to turn over such evidence.

For example:

Jack has been charged with killing his lover’s husband. He has denied having committed the crime throughout the investigation, claiming that he had briefly attended an out-of-town going away party for a co-worker during the time the murder took place. Unfortunately, his attorney could find nobody who could specifically testify to having seen him at the party.

Another attendee of the party realized, a couple of weeks before the trial, that Jack appeared in the background of a couple of videos she had taken during the party. She turned this video evidence in to the prosecutor’s office, trusting that justice would be done.

Chin, the prosecuting attorney, decides that the video is a little blurry, and buries it deeply in a file somewhere. Jack is ultimately convicted of murder when, had the prosecutor disclosed the evidence to his attorney, he might have been acquitted, as it would have at least brought reasonable doubt.

Improper Argument

There are certain types of arguments that are prohibited from being used in opening or closing statements. Types of prosecutorial misconduct that involve improper argument include mentioning facts that have not already been presented, misstating the law, and criticizing the defendant for exercising his Fifth Amendment right not to testify.

Improper Use of the Media

Prosecutors are often guilty of giving too much information to the press. This can result in what is called a “trial by media.” Prosecutors are not supposed to tell the press anything that could prejudice the defendant’s case. They are also not supposed to do anything to increase the possibility that the general public will condemn the defendant as guilty before the verdict is in.

Introduction of False Evidence

Some prosecutors will do anything to win a case, including offering false evidence to “prove” the defendant’s guilt. In addition to being illegal, this is one of those situations that can be considered a violation of professional rules as well. This type of conduct may include witness tampering (such as encouraging a witness to lie in court), and offering up evidence that the prosecutor knows is false.

Discrimination in Jury Selection

Prosecutors are not allowed to discriminate when picking a jury. This means that they cannot exclude a potential juror based on that juror’s sex, religion, ethnicity, or some other similar personal trait. When prosecutors engage in this kind of discrimination, they not only violate the defendant’s constitutional rights, but they also violate the constitutional rights of the potential juror they are discriminating against.

Discrimination in jury selection sometimes occurs in a case wherein the prosecutor believes that a potential juror who is also a minority will be sympathetic toward a defendant belonging to that minority. Here, the prosecutor discriminates by passing over that potential juror for fear that the juror will compromise the prosecution’s case.

Abuse of Prosecutorial Discretion

Prosecutorial discretion is a term for the authority that a prosecutor has in deciding whether to formally charge someone with a crime, what charges to bring against that person, and how to pursue the case. This is the authority by which a prosecutor is able to offer plea bargains, and even offer immunity to someone who has committed a crime, in exchange for help in prosecuting another individual.

Prosecutorial discretion, by its very nature, can easily involve the abuse of power. For instance, if a prosecutor decides not to bring a case against someone, then he is said to have exercised “favorable” prosecutorial discretion. However, there are times when cases are harshly prosecuted to the fullest extent of the law when perhaps the case should not have been tried at all, or at least tried to a lesser extent. These prosecutors may be abusing their prosecutorial discretion.

Prosecutorial discretion is all about practicing good judgment while considering many different factors. Such factors include limited governmental resources, the balancing of governmental priorities, and the consideration of the rights and privileges of civilians.

Wrongful Conviction by Prosecutorial Misconduct

Prosecutors engaging in illegal or in violation of ethics rules put the entire criminal justice system at risk. When individuals charged with crimes cannot expect a fair trial, in which actual evidence and testimony provide information to a fairly-chosen jury, it is all for naught.

When a suspect is found guilty of a crime after a prosecutor has presented falsified evidence, or engaged in other misconduct, the defendant may have the verdict overturned by the appellate court. While, in cases of mistake, the appellate court may order a new trial, in the case of prosecution misconduct, the verdict may be overturned, and a new trial not allowed.

Wrongful conviction by prosecutorial misconduct may also shed a harsh light on all of that prosecutor’s prior convictions. This has the ability to trigger a mass review, and many appeals, all claiming misconduct must have occurred in their cases as well.

Prosecutorial Misconduct Example in a Murder Case

Prosecutorial misconduct that involved the withholding of evidence occurred in the landmark case of Brady v. Maryland. In this case, the state of Maryland had convicted John Leo Brady and his friend, Donald Boblit, of a murder that took place during a robbery. Brady had admitted that he was involved with the murder, but he claimed that Boblit was the one responsible for actually doing the killing.

The prosecution withheld evidence in the form of a written statement that was supplied by Boblit in which he confessed to Brady’s exact claim. Brady, however, did not become aware of this fact until after he was convicted and sentenced to the death penalty. Boblit received the same conviction and sentence for his part in the crime. In Maryland, the only two sentences for this crime were life in prison or the death penalty.

Brady appealed his conviction, requesting a new trial, which was dismissed by the trial court but granted by the Maryland Court of Appeals. The Court held that the prosecution’s suppression of evidence robbed Brady of his right to due process. The Court affirmed Brady’s conviction and his guilt, yet permitted a retrial for the sole purpose of revising his punishment.

Brady appealed again on the grounds that he was being denied a federal right in the Court of Appeals restricting a new trial to the reconsideration of his punishment, and not to reconsider his conviction as a whole. The Supreme Court granted certiorari, agreeing to consider the issue of whether Brady’s federal rights had been violated when the re-trial was restricted to the matter of punishment.

The Supreme Court’s decision in this case became one of the most important decisions in the history of criminal justice. The Court held that withholding exculpatory evidence violates a defendant’s due process, “where the evidence is material either to guilt or to punishment.” The Court found that under Maryland state law, the withheld confession could not have proven Brady’s innocence, but that it was crucial in determining how severely he was to be punished. Therefore, it was proper for the remand back to the lower court for the purposes of reconfiguring Brady’s punishment.

This case inspired the term “Brady disclosure,” which refers to the requirement that the prosecution disclose any exculpatory evidence they may find to the defense. “Brady evidence” includes such exculpatory evidence as witness statements or physical evidence that disproves the testimony of the prosecution’s witnesses. It is also evidence that permits the defense to disprove the credibility of a witness for the prosecution. There are also “Brady cops,” which is a term that refers to police officers who have been confirmed as being actively dishonest while in their official capacity.

Related Legal Terms and Issues

  • Conviction – An official declaration of someone’s guilt in a criminal case, made by either a jury verdict or a judge’s decision.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Due Process – The fundamental, constitutional right to fair legal proceedings in which all parties will be given notice of the proceedings, and have an opportunity to be heard.
  • Exculpatory Evidence – Evidence in a criminal trial that proves a defendant’s innocence.
  • Remand – To send a case back down to the lower court from which it was appealed with instructions for the lower court as to how to proceed with the case.
  • Writ of Certiorari – An order issued by a higher court demanding a lower court forward all records of a specific case for review.