Prosecutorial Misconduct

Prosecutorial Misconduct


The American Bar Association describes a prosecutor as “an administrator of justice, a zealous advocate, and an officer of the court.” According to the ABA, “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely convict.” In fulfilling that duty, the ABA says, “[t]he prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

What is Prosecutorial Misconduct?

Not all prosecutors aim to fulfill their duty. This abdication of their duty has resulted in decades of legal decisions addressing “prosecutorial misconduct.” Nearly 100 years ago, the late Supreme Court Justice George Sutherland explained in Berger v. United States, 295 U.S. 78 (1935), that a prosecutor engages in misconduct when they “overstep the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record.”

Prosecutorial misconduct shows its face in many ways. Some of the more common examples that have worked their way into the United States Supreme Court include the following:

  • prosecutors suppressing exculpatory evidence from the defense (also known as Brady violations),
  • prosecutors knowingly using perjured testimony during trials,
  • prosecutors misstating the law in front of the jury,
  • prosecutors making inflammatory and racist remarks in front of the jury, and
  • prosecutors surreptitiously gaining access to the defense attorney’s preparatory work before or during trial.

Why does Prosecutorial Misconduct Matter?

No one should dispute that prosecutor wrongdoing is a problem. If prosecutors are going to be administrators of justice, zealous advocates and officers of the court, instances of prosecutorial misconduct must be rare if not completely nonexistent. On a theoretical level, this is essential for preserving the public’s belief in their justice system.

But prosecutorial misconduct matters for reasons that are for more tangible than the public’s belief in the justice system. Researchers have found that prosecutorial misconduct has played a role in between 36% and 42% of wrongful convictions. That statistic, frankly, is alarming.

The attorney-client privilege is the oldest and most sacred of all legal privileges. HR 5545 preserves the attorney-client privilege.