When a prosecutor attempts to wrongly sway the jury to convict a defendant or to see that a harsher punishment than appropriate for the alleged offender is imposed through either an illegal act or by deliberately failing to act, this is what’s legally known as prosecutorial misconduct. Any behavior from the prosecutor that is in violation of the court rules or the larger ethical standards of practicing law can be determined to be prosecutorial misconduct, and unfortunately, prosecutorial misconduct in the United States judicial system is more common than most people realize.



A Good Attorney can Spot Prosecutorial Misconduct as it Occurs

One of the several reasons that it is important for anyone charged with a crime to seek out an attorney who is experienced and knowledgeable in all areas of criminal defense is to help safeguard themselves against this kind of injustice, as the majority of acts that could be considered prosecutorial misconduct must be recognized and objected to during the course of trial. Some forms of this type of misconduct cannot be reversed once a guilty verdict has been made and failing to object in the course of a trial can also lead to the unintentional waiving of the rights that would have otherwise allowed prosecutorial misconduct to the used as the basis for requesting a new trial.


What Are Some of the Methods of Prosecutorial Misconduct?

There are many examples of prosecutorial misconduct. Some of those include:

●      Intentionally obscuring or failing to disclose exculpatory evidence that would be in favor of the defendant.

●      Tampering with, falsifying, hiding or destroying any evidence, case files or court records that relates to the defendant’s innocence.

●      Making references in trial to evidence that has already been determined to be inadmissible in court.

●      Making references, to or asserting things that have not been factually confirmed as facts during the trial.

●      Making improper remarks that are designed in part to prejudice the jury against the defendant, including personal opinions regarding the guilt of the defendant and negatively referring to the defendant’s choice to exercise their Fifth Amendment right not to testify at their trial.

●      Violating the rules regarding the fair selection of the jury members, usually by selecting jurors based on religion, race or gender.

●      Intentionally introducing testimony or evidence that is false into the trial.

●      Tampering with, badgering, or threatening witnesses in order to affect their statement.


What is Exculpatory Evidence?

A term heard often in cases involving prosecutorial misconduct, exculpatory evidence is evidence that is either favorable for or even potentially exonerating for the defendant in a case.  Prosecutors have a duty to disclose exculpatory evidence prior to the defendant’s plea entry, whether it was requested of them or not. This was established in the landmark 1963 Supreme Court case of Brady v. Maryland. Unfortunately, there are still far too many instances where prosecutors will ignore exculpatory evidence or even sweep it under the rug, resulting in a case of prosecutorial misconduct.


New Laws to Help Protect Defendants Against Misconduct

The beginning of June 2017 actually saw the passing of two laws in the state of Nevada that were created specifically to counteract the misconduct of state prosecutors. It would be remiss to mention these two new laws without also paying service to the case of Fred Steese, a man who was convicted wrongfully of the 1992 murder of Gerard Soules in 1995 and who was recently released and ruled innocent after 20 years in prison after exculpatory evidence was discovered in the files of the prosecution.


A Prosecutor Should be Expected to Uphold Best Practices

The National District Attorneys Association defines the primary responsibility of a prosecutor in the following way:

“The prosecutor is an independent administrator of justice.  The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.  This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected.”

In every single case that our attorneys take on, we do so with the expectations that the prosecution will uphold certain standards or best practices because this is what is the way that things are supposed to proceed. When the proper function of our legal system breaks down due to the misconduct of the prosecution, in any form, this results in a failure to provide defendants with well informed and fair judgement.  It denies them the fair trial that is their right.  Situations in which the prosecutor does not conduct themselves professionally must be recognized and corrected.  At our firm, we believe strongly in making sure this happens.


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