Measuring prosecutorial actions: an analysis of misconduct versus error.

• Author: Minihan, Shawn E.

Rampant Prosecutorial Misconduct

The New York Times, Jan. 4, 2014

The Untouchables:

America's Misbehaving Prosecutors,

And The System That Protects Them

The Huffington Post, Aug. 5, 2013

Misconduct by Prosecutors, Once Again

The New York Times, Aug. 13, 2012

PROSECUTORIAL MISCONDUCT has become national news. To a layperson, the term "prosecutorial misconduct" expresses "intentional wrongdoing," or a "deliberate violation of a law or standard" by a prosecutor. (1)

The newspaper articles cited at left describe acts that would clearly fall within a layperson's definition of prosecutorial misconduct. For example, the article "Rampant Prosecutorial Misconduct" discusses United States v. Olsen, where federal prosecutors withheld a report that revealed sloppy work on the part of the government's forensic scientists, resulting in wrongful convictions. (2, 3) The article "The Untouchables: America's Misbehaving Prosecutors, and the System that Protects Them," discusses State v. Thompson, where prosecutors, among other acts of misconduct, withheld blood evidence that would have exonerated the defendant. (4,5) The article "Misconduct by Prosecutors, Once Again," discusses People v. Bedi, where the prosecutor withheld information that the district attorney's office paid a key witness $16,640 for hotel bills and $3,000 in cash, facts the prosecutor knew but never disclosed to the defense. (6,7)

In the legal field, "prosecutorial misconduct" is a term of art that describes a wide spectrum of actions, ranging from innocent mistakes to malicious conduct. (8) It is not equivalent to a finding of professional misconduct (e.g., an ethical violation). (9) It does not even require that the prosecutor commit the act that gives rise to the misconduct finding. Any persons acting in cooperation with or under the prosecutor's control can commit misconduct attributable to the prosecutor. Nor does it require that the prosecutor act in a malicious, knowing, intentional or reckless manner. (10)

When the court labels an act "prosecutorial misconduct," however, it "may be perceived as reflecting intentional wrongdoing, or even professional misconduct, even in cases where such a perception is entirely unwarranted ..." (11) The danger inherent in the court's overbroad use of the term "prosecutorial misconduct" is twofold. First, in cases where there is an innocent mistake or poor judgment on the part of the prosecutor, the term "prosecutorial misconduct" unfairly stigmatizes that prosecutor. A layperson may assume that the prosecutor intentionally committed a wrongdoing or deliberately violated a law or ethical standard.

In those cases where the prosecutor...