From the President: Prosecutorial Misconduct: An Essential Term of Art

From the President

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

After working on a report and recommendation regarding prosecutorial misconduct and the vindication of defendants’ constitutional rights in criminal trials, I had occasion to review the report of the ABA’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process. I was stunned. I could find no reference to prosecutorial misconduct whatsoever in any of the chapters of the report. I knew intuitively that prosecutorial misconduct was one of the leading causes of wrongful convictions. And yet, it was not even addressed in the chapter on “Prosecution Practices.”

Within the chapter on law enforcement’s “Investigative Policies and Personnel,”1 the report discusses training to prevent illegal, unethical, or unprofessional behavior impacting innocent persons. In the same chapter, under the title “Misconduct,” it warns that misconduct can lead to the conviction of an innocent person. Finally, in the introduction to the chapter on “Compensation for the Wrongly Convicted,” the report mentions that exonerations have occurred as a result of case re-evaluations in the light of police and forensic scandals. But no mention is made of one of the leading factors causing wrongful convictions — prosecutorial misconduct.

I decided to look further. The ABA Standards on the Prosecution Function clearly recognize the existence of prosecutorial misconduct in standard 3-1.5 (Duty to Respond to Misconduct). Basically, it tells prosecutors that if they become aware that a prosecutor intends to act contrary to a legal obligation or contrary to the law, they should follow office policy regarding that misconduct, report the conduct to superiors if they cannot dissuade the lawyer, or report it to outside authorities if the prosecutor engaging in misconduct is the head of the office. These standards are not new; they have been around for a long time.2 

But the more recently drafted and approved Standards on Prosecutorial Investigations seem to avoid “prosecutorial misconduct” as well. They address misconduct by law enforcement, judges, defense lawyers, witnesses, investigators, informants, and jurors. But there is no “prosecutorial misconduct” section. The closest that these Standards come to addressing misconduct committed by prosecutors is in Standard 3.1 (Prosecutor’s Role in Addressing Suspected Law Enforcement Misconduct). Although the title does not appear to apply to prosecutorial misconduct, Standard 3.1(a) applies to anyone in the prosecutor’s office and is similar to Prosecution Function Standard 3-1.5.3 

Like a sleuth, I employed deductive reasoning to try to explain the current disdain for the term “prosecutorial misconduct.” Certainly prosecutors, defense lawyers, professors, and law enforcement officials are aware that prosecutorial misconduct leads to a significant number of wrongful convictions.4 But I knew from discussions with lawyers that prosecutors were very concerned about the use of “prosecutorial misconduct” as a term that included conduct which entitled a defendant to relief but did not also involve “professional misconduct” by a prosecutor.

While I understand that under such circumstances someone might read an opinion in which “prosecutorial misconduct” was found as impugning the integrity of the prosecutor, courts should not hesitate to find “prosecutorial misconduct” out of concern for a prosecutor’s reputation. This is especially true when precision in the opinion would make clear that the prosecutor engaged in no wrongdoing. Such clarity is certainly worth encouraging. But courts rely upon this term of art to describe error that entitles the defendant to a new trial. If they call it anything else, such as “error,” then it would mislead courts that subsequently review the case. It would confuse the issue of whether the court found that the error rose to the level of reversible error.

I am also aware that the U.S. Supreme Court recently heard arguments in Pottawattamie County v. McGhee.5 Apparently every prosecutor’s office, including the Department of Justice, which filed a “friend of the court” brief, supported the position that prosecutors should not be held liable for “framing” a criminal defendant during a criminal trial. The argument was that “cooking up” evidence does not harm a defendant until it is used at trial. At trial, prosecutors enjoy immunity. Thus, where prosecutors “frame” the defendant at trial by using the evidence they “cooked up” in the investigation, they are immune for this conduct. NACDL filed an amicus brief countering this position, arguing for the application of qualified immunity under such circumstances. As this issue of The Champion went to press, the parties reached a settlement in Pottawattamie and the Supreme Court removed the case from its docket. Thus, it may be years before the Court decides if immunity extends to a prosecutor’s misconduct involving fabricating evidence during a criminal investigation and introducing it at trial.

There has been no lack of examples in recent high-profile cases. In the Ted Stevens case, tried by the Department of Justice Public Integrity Section, the DOJ abandoned the conviction because favorable evidence was withheld by the prosecution. Then there is the W.R. Grace case in which defense lawyers contended that Brady evidence was withheld and that there was an improper relationship between a government witness and the government. And who can forget the Duke lacrosse case? The prosecutor withheld favorable evidence establishing that the three Duke players accused of rape were innocent.

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Maybe I am naïve, but I do not understand why ethical prosecutors who do not engage in professional misconduct and who do not intend to withhold favorable evidence want to “deep six” the term “prosecutorial misconduct.” Telling courts to stop using this term is dangerous. In many jurisdictions, that would be tantamount to telling courts not to find reversible error where it exists. And trying to do away with the term at a time when prosecutorial misconduct is such a serious concern to the proper administration of justice is, in my opinion, tone deaf. If the message that prosecutors’ offices intend to send is that they will seek justice, not convictions, they are not doing so by insisting that courts should be dissuaded from finding prosecutorial misconduct. No, the message they would be sending is that they want to be considered infallible.

A prosecutor’s office that refuses to accept the application of a long used and well understood legal term of art that is important to the fair administration of justice is like the “emperor who wears no clothes.” Changing the use of the term to make prosecutors look better does not ensure that winning that effort will cloak prosecutors against appropriate questions regarding integrity. In fact, it may raise them.


  1. Presumably investigative personnel are investigators and not prosecutors.
  2. This particular version of the standards dates back to 1992 and earlier versions contained a variation.
  3. Standard 3.1(a) states: “If the prosecutor has reason to suspect misconduct or unauthorized illegal activity at any level of the prosecutor’s office or in any agency or department engaged in a criminal investigation, the prosecutor should promptly report the suspicion and the reason for it to appropriate supervisory personnel in the prosecutor’s office who have authority to address the problem, or to the appropriate inspector general’s office, or similar agency, if reporting within the prosecutor’s own office is problematic. Reporting may also be required to comply with requirements of the applicable rules of professional conduct, the Model Rules and the law of the jurisdiction.”
  4. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 959 (2004) (42 percent of proven wrongful convictions are attributed to prosecutorial misconduct).
  5. Pottawattamie County v. McGhee, 130 S. Ct. 50, No. 08-1065 (oral argument Nov. 4, 2009, case settled and dismissed January 4, 2010).

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