What, Exactly, Is “Prosecutorial Misconduct”?

As the Supreme Court has famously written, the government’s interest in a criminal prosecution “is not that it shall win a case, but that justice shall be done.”  An inscription on the walls of the Department of Justice, just outside the door to the Attorney General’s office, expresses similar sentiments: “The United States wins its point whenever justice is done its citizens in the courts.”

For that reason, federal prosecutors have a special duty – imposed not only by their professional obligations but the Constitution itself – to ensure fairness in a criminal case.  They engage in prosecutorial misconduct when they improperly or illegally act (or fail to act, when required to do so) in a way that causes a defendant to be wrongfully convicted or punished unjustifiably.

Prosecutorial misconduct comes in many forms.  Prosecutors in the United States exercise substantial control over most phases of a criminal case – from participating in the investigation, to deciding what charges to seek, to recommending a sentence after conviction – and prosecutorial misconduct can infect any stage of this process.

Actions that courts have labeled prosecutorial misconduct include:

• Using improper investigative techniques, such as “entrapment” – inducing a person to commit a crime who was not otherwise disposed to commit it.
• Bringing criminal charges in bad faith without realistic hope of winning a conviction – for example, to punish a political rival, or to retaliate against someone.
• Making statements to the media that prejudice the jury pool.
• Engaging in improper plea-bargaining – for example, convincing a defendant to plead guilty through false promises or misrepresentations about the existence of incriminating evidence.
• Failing to turn over exculpatory evidence.
• Tampering with evidence.
• Knowingly presenting false witness testimony or other false evidence to a court or grand jury.
• Asking a defendant or defense witness damaging and suggestive questions with no factual basis.
• Making improper statements in front of the jury – for example, expressing a personal opinion about the guilt of a defendant or the credibility of testimony, mentioning facts not in evidence, or criticizing the defendant for exercising his constitutional right not to testify.

Sufficiently culpable and harmful misconduct can result in the dismissal of charges or a declaration of a mistrial.  Misconduct can also be raised on appeal or by a collateral attack on the conviction through a petition for habeas corpus.

Such relief is rare, however.  To show that prosecutorial misconduct requires dismissal of the indictment or a mistrial, the defendant usually has to show that the prosecutor willfully engaged in misconduct and that the misconduct “prejudiced” the defendant.  In other words, when considering a sanction, judges will consider whether the prosecutor intended to act improperly or was motivated by some illicit or sinister reason.

Even when the prosecutor did not act intentionally, however, a judge might still dismiss the indictment or declare a mistrial if the error rendered the proceeding fundamentally unfair to the defendant.  And if the error did not affect the fundamental fairness of proceeding – and if a judge believes the prosecutor acted in good faith or simply made a mistake – she may impose some lesser sanction, like a stern warning or a curative jury instruction. 

For example, in the securities fraud case against Broadcom CEO Henry Nicholas III and Broadcom CFO William J. Ruehle, the court dismissed the indictment and entered a judgment of acquittal to punish prosecutorial misconduct.  The court concluded that the government had improperly intimidated three witnesses critical to the defendants’ case, and improperly influenced their testimony in an attempt to make it more favorable to the prosecution.

In another highly publicized case, the so-called “KPMG tax-shelter case,” the court dismissed charges of fraud and tax evasion that were brought against 13 former executives at the accounting firm KPMG.  The court concluded that prosecutors had engaged in misconduct by pressuring KPMG to withhold payment of attorneys’ fees that the firm had previously agreed to pay for the 13 former executives.  That conduct, the court concluded, unjustifiably interfered with the defendants’ Sixth Amendment right to counsel.

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