Monder Law Group - News
Keeping Everything Fair and Balanced: Badly Behaved Prosecutors Ruining the Balance
Photo courtesy of: wrongfulconvictionsblog.org
The justice system can only be called a justice system if all aspects of it are fair and evenhanded. The minute an iota of corruption surfaces, the entire system suffers—and eventually breaks down. The United States, while not perfect, is still striving for balance. And when bad behavior occurs on either side, there is an available remedy. California courts have preserved this avenue, as well. This post will deal specifically with prosecutorial misconduct.
But First a Primer:
What is prosecutorial misconduct?
Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. The Supreme Court has defined it as “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”
Types of Prosecutorial Misconduct:
- Asserting or referring to facts that haven’t been proven in the trial
- Referring to inadmissible evidence
- Once evidence has been deemed inadmissible, you cannot bring it in trial. Sometimes, prosecutors will try to hint at this evidence, which is also not allowed. Such as a criminal history not relevant to this case.
- Commenting on the defendant’s choice not to testify at his/her own trial
- This is your right under the United States Constitution. And by commenting on your failure to testify—the prosecutor may be hinting that you have something to hide. This, in turn, violates your constitutional right to choose not to testify.
- Expressing personal opinions about the defendant’s guilt
- This is a tricky rule to grasp, and you need a skilled defense attorney to be able to spot when this becomes misconduct. But the general rule is that a prosecutor may express his/her personal opinion if that opinion has some basis in the evidence presented. But if it is unfounded and based on nothing, it may be prosecutorial misconduct to express it.
- Making inflammatory statements designed to appeal to the passions of the jury
- For example, it is prosecutorial misconduct to ask the jury to try to imagine how the victim felt when the crime was committed.
- Withholding evidence that would have helped the defense case
- Example: Tom is on trial for robbery and murder. His defense is mistaken eyewitness identification. He is found guilty. But it turns out that the prosecutor knew that one eyewitness had eliminated Tom as the man he saw in the vicinity of the crime scene. But the prosecutor had not disclosed this fact to Tom or his lawyers. This is serious prosecutorial misconduct and justifies a reversal of Tom’s guilty verdict.
Why do prosecutors have this burden?
They hold a great deal of power. Prosecutors are entrusted with determining who will be held accountable when a crime occurs. They work with the police as they gather evidence and build a case against a suspect and then they take that case to court and are charged with convincing a jury of the guilt of the suspect. First a foremost, it is the prosecutor’s job to seek justice and present the judge and jury with facts and legal arguments that result is the conviction of the guilty defendant.
How Often Does This Actually Occur?
Given the nature of this offense, a clear percentage is hard to be determined. But researched for the California Innocence Project, claim the following: In their analysis of the causes of wrongful convictions in cases where the conviction was overturned based on new DNA evidence, researchers found that prosecutorial misconduct was a factor in from 36% to 42% of the convictions. This is an alarmingly high percentage. And while you may think the statistics are biased based on their source, the main take away is that there should NOT be any amount for this percentage. This should not occur at all, because while there may be human mistakes made, there are available remedies that the defense side should immediately demand.
Available Remedies of Prosecutorial Misconduct:
The way to raise an argument of prosecutorial misconduct is through a California motion for a new trial. You and your attorney must bring the motion for a new trial before your sentencing (or the judge’s grant of probation, or your commitment as an addict or insane person, if that was the outcome of your case).
Other issues that are commonly addressed in a motion for a new trial, besides prosecutorial misconduct, include:
- Jury misconduct ,
- Ineffective assistance of counsel,
- Error of law by the judge,
- Insufficient evidence, or
- The discovery of new evidence.
If you or loved one is in need of help with prosecutorial misconduct and you are looking to hire an attorney for representation, we invite you to contact us at the Monder Law Group.
