Prosecutorial Misconduct: How common is it?

Excerpts from the Center for Public Integrity, June 6, 2003:


Local prosecutors in many of the 2,341 jurisdictions across the nation have stretched, bent or broken rules while convicting defendants, the Center has found. Since 1970, individual judges and appellate court panels cited prosecutorial misconduct as a factor when dismissing charges at trial, reversing convictions or reducing sentences in at least 2,012 cases.

In 513 additional cases, appellate judges offered opinions—either dissents or concurrences—in which they found the prosecutorial misconduct serious enough to merit additional discussion; some of the dissenting judges wrote that they found the misconduct warranted a reversal. In thousands more cases, judges labeled prosecutorial behavior inappropriate, but allowed the trial to continue or upheld convictions using a doctrine called "harmless error."

The Center analyzed 11,452 cases in which charges of prosecutorial misconduct were reviewed by appellate court judges. In the majority of cases, the allegation of misconduct was ruled harmless error or was not addressed by the appellate judges, and the conviction stood. The relative rarity of reversals makes these opinions useful from an empirical standpoint: Any prosecutor who has more than one reversal to her credit belongs to a select club.

Prosecutorial misconduct falls into several categories, including:

*Courtroom misconduct (making inappropriate or inflammatory comments in the presence of the jury; introducing or attempting to introduce inadmissible, inappropriate or inflammatory evidence; mischaracterizing the evidence or the facts of the case to the court or jury; committing violations pertaining to the selection of the jury; or making improper closing arguments);

*Mishandling of physical evidence (hiding, destroying or tampering with evidence, case files or court records);

*Failing to disclose exculpatory evidence;

*Threatening, badgering or tampering with witnesses;

*Using false or misleading evidence;

*Harassing, displaying bias toward, or having a vendetta against the defendant or defendant's counsel (including selective or vindictive prosecution, which includes instances of denial of a speedy trial);

*Improper behavior during grand jury proceedings.

Some of the most common allegations of prosecutorial misconduct involved improper closing arguments and excluding jurors on the basis of race, ethnicity, gender or some other discriminatory grounds.

In most jurisdictions, at least 95 percent of the cases that pour in from the police never reach a jury, which means any misconduct occurs away from public view. The only trial those defendants receive takes place in the prosecutor's office; the prosecutor becomes the judge and the jury. . . . misconduct often occurs out of sight, especially in cases that never go to trial. . . . "It is not a safe assumption that cases ending with guilty pleas are absent prosecutorial misconduct."

Perhaps the most difficult type of misconduct to unearth, Goldwasser said, is the failure of the prosecutor to turn over possibly exculpatory information to the defense.