Prosecutorial misconduct
Encyclopedia
In jurisprudence
, prosecutorial misconduct is a procedural defense
; via which, a defendant
may argue that they should not be held criminally
liable
for actions which may have broken the law
, because the prosecution acted in an "inappropriate" or "unfair" manner. Such arguments may involve allegations that the prosecution withheld evidence
or knowingly permitted false testimony
. This is similar to selective prosecution
.
had been a victim of prosecutorial misconduct during a 1986 trial in which federal prosecutors withheld evidence. Demjanjuk's sentence
was overturned, but he lost when his case was retried.
In the 1995 murder trial
of O. J. Simpson
, the defense argued that Los Angeles Police Department
detective
Mark Fuhrman
had planted evidence
at the crime scene
. Although Fuhrman denied the allegations, Simpson was found not guilty
, although he was later held liable for the deaths in a civil suit filed by the families of the victims. In USA Today
(August 24, 1995), Francis Fukuyama
stated, "[Such defenses lead to] a distrust of government
and the belief that public authorities are in a vast conspiracy
to violate the rights
of individuals." However, such misconduct may actually be widespread in the United States. "It’s a result-oriented process today, fairness be damned," Robert Merkle, former U.S. Attorney for the Middle District of Florida
, said. Prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions, and the doctrine of harmless error
is used by appellate courts to uphold convictions despite such illegal tactics, thus giving prosecutors few incentives to comply with the law.
A more recent example of prosecutorial misconduct can be seen in the 2006 Duke lacrosse case. In that incident, members of the Duke University men's lacrosse team
hired a female stripper
for a team party. She went on to accuse three players of raping
her at that party. Making the case even more volatile was the fact that the stripper was black
and the three accused players were white
. The actions of the prosecutor in this case, Mike Nifong, drew enormous criticism, as he proceeded with the case despite numerous inconsistencies in the accuser's story, a lack of DNA evidence conclusively linking any player to any sexual assault, and at least two of the accused having solid alibis. He also made numerous inflammatory statements to the media. The case against the players eventually collapsed; all charges were dropped, and the North Carolina Attorney General
took the unusual step of declaring the players innocent. The North Carolina State Bar eventually disbarred
Nifong for his actions during this case.
Despite such, the defense has been successful roughly 1 out of 6 times it has been used from 1970 to 2003. During that period, judges have cited misconduct by prosecutors as a reason to dismiss charges, reverse convictions, or reduce sentences in 2,012 cases, according to a study by the Center for Public Integrity
released in 2003; the researchers looked at 11,452 cases in which misconduct was alleged.
A debate persists over the meaning of the term. Prosecutors have asked judges to stop using the term to refer to an unintentional error, and to restrict its use to describe a breach of professional ethics. E. Norman Veasey, the chief justice of Delaware Supreme Court
, answered one such request in 2003 by noting the term's extensive use in rulings over the past 60 years. "We believe it would be confusing to change the terminology in view of this history," he wrote in reply.
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, prosecutorial misconduct is a procedural defense
Procedural defense
In jurisprudence, procedural defenses are a form of defense, via which a party argues that it should not be held liable for a legal charge or claim brought against it. In common law jurisdictions the term has applications in both criminal law and civil law...
; via which, a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
may argue that they should not be held criminally
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for actions which may have broken the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, because the prosecution acted in an "inappropriate" or "unfair" manner. Such arguments may involve allegations that the prosecution withheld evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
or knowingly permitted false testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
. This is similar to selective prosecution
Selective prosecution
In jurisprudence, selective prosecution is a procedural defense in which a defendant argues that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute...
.
Some examples and remedies
In late 1993, the 6th US Circuit Court of Appeals ruled that John DemjanjukJohn Demjanjuk
John Demjanjuk is a retired Ukrainian-American auto worker who gained notoriety after being accused numerous times of Holocaust-related war crimes....
had been a victim of prosecutorial misconduct during a 1986 trial in which federal prosecutors withheld evidence. Demjanjuk's sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
was overturned, but he lost when his case was retried.
In the 1995 murder trial
O. J. Simpson murder case
The O. J. Simpson murder case was a criminal trial held in Los Angeles County, California Superior Court from January 29 to October 3, 1995. Former American football star and actor O. J...
of O. J. Simpson
O. J. Simpson
Orenthal James "O. J." Simpson , nicknamed "The Juice", is a retired American collegiate and professional football player, football broadcaster, and actor...
, the defense argued that Los Angeles Police Department
Los Angeles Police Department
The Los Angeles Police Department is the police department of the city of Los Angeles, California. With just under 10,000 officers and more than 3,000 civilian staff, covering an area of with a population of more than 4.1 million people, it is the third largest local law enforcement agency in...
detective
Detective
A detective is an investigator, either a member of a police agency or a private person. The latter may be known as private investigators or "private eyes"...
Mark Fuhrman
Mark Fuhrman
Mark Fuhrman is a former detective of the Los Angeles Police Department , known for his part in the investigation of the murders of Nicole Brown Simpson and Ronald Goldman and his subsequent felony conviction for perjury...
had planted evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
at the crime scene
Crime scene
A crime scene is a location where an illegal act took place, and comprises the area from which most of the physical evidence is retrieved by trained law enforcement personnel, crime scene investigators or in rare circumstances, forensic scientists....
. Although Fuhrman denied the allegations, Simpson was found not guilty
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...
, although he was later held liable for the deaths in a civil suit filed by the families of the victims. In USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
(August 24, 1995), Francis Fukuyama
Francis Fukuyama
Yoshihiro Francis Fukuyama is an American political scientist, political economist, and author. He is a Senior Fellow at the Center on Democracy, Development and the Rule of Law at Stanford. Before that he served as a professor and director of the International Development program at the School of...
stated, "[Such defenses lead to] a distrust of government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
and the belief that public authorities are in a vast conspiracy
Conspiracy theory
A conspiracy theory explains an event as being the result of an alleged plot by a covert group or organization or, more broadly, the idea that important political, social or economic events are the products of secret plots that are largely unknown to the general public.-Usage:The term "conspiracy...
to violate the rights
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
of individuals." However, such misconduct may actually be widespread in the United States. "It’s a result-oriented process today, fairness be damned," Robert Merkle, former U.S. Attorney for the Middle District of Florida
United States District Court for the Middle District of Florida
The United States District Court for the Middle District of Florida serves the residents of thirty-five counties from eight courthouses....
, said. Prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions, and the doctrine of harmless error
Harmless error
A harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...
is used by appellate courts to uphold convictions despite such illegal tactics, thus giving prosecutors few incentives to comply with the law.
A more recent example of prosecutorial misconduct can be seen in the 2006 Duke lacrosse case. In that incident, members of the Duke University men's lacrosse team
Duke Blue Devils men's lacrosse
The Duke Blue Devils men's lacrosse team represents Duke University in National Collegiate Athletic Association Division I men's lacrosse...
hired a female stripper
Stripper
A stripper is a professional erotic dancer who performs a contemporary form of striptease at strip club establishments, public exhibitions, and private engagements. Unlike in burlesque, the performer in the modern Americanized form of stripping minimizes the interaction of customer and dancer,...
for a team party. She went on to accuse three players of raping
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
her at that party. Making the case even more volatile was the fact that the stripper was black
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
and the three accused players were white
White American
White Americans are people of the United States who are considered or consider themselves White. The United States Census Bureau defines White people as those "having origins in any of the original peoples of Europe, the Middle East, or North Africa...
. The actions of the prosecutor in this case, Mike Nifong, drew enormous criticism, as he proceeded with the case despite numerous inconsistencies in the accuser's story, a lack of DNA evidence conclusively linking any player to any sexual assault, and at least two of the accused having solid alibis. He also made numerous inflammatory statements to the media. The case against the players eventually collapsed; all charges were dropped, and the North Carolina Attorney General
North Carolina attorney general
The Attorney General of North Carolina is the head of the state's Department of Justice and provides legal representation and advice to all state agencies. He or she does not have the authority to prosecute specific crimes unless requested to do so by a local district attorney...
took the unusual step of declaring the players innocent. The North Carolina State Bar eventually disbarred
Disbarment
Disbarment is the removal of a lawyer from a bar association or the practice of law, thus revoking his or her law license or admission to practice law...
Nifong for his actions during this case.
Despite such, the defense has been successful roughly 1 out of 6 times it has been used from 1970 to 2003. During that period, judges have cited misconduct by prosecutors as a reason to dismiss charges, reverse convictions, or reduce sentences in 2,012 cases, according to a study by the Center for Public Integrity
Center for Public Integrity
The Center for Public Integrity is a nonprofit organization dedicated to producing original, responsible investigative journalism on issues of public concern. The Center is non-partisan and non-advocacy and committed to transparent and comprehensive reporting both in the United States and around...
released in 2003; the researchers looked at 11,452 cases in which misconduct was alleged.
A debate persists over the meaning of the term. Prosecutors have asked judges to stop using the term to refer to an unintentional error, and to restrict its use to describe a breach of professional ethics. E. Norman Veasey, the chief justice of Delaware Supreme Court
Delaware Supreme Court
The Supreme Court of Delaware is the sole appellate court in the United States' state of Delaware. Because Delaware is a popular haven for corporations, the Court has developed a worldwide reputation as a respected source of corporate law decisions, particularly in the area of mergers and...
, answered one such request in 2003 by noting the term's extensive use in rulings over the past 60 years. "We believe it would be confusing to change the terminology in view of this history," he wrote in reply.
Types of misconduct
- False confessionFalse confessionA false confession is an admission of guilt in a crime in which the confessor is not responsible for the crime. False confessions can be induced through coercion or by the mental disorder or incompetency of the accused...
- False arrestFalse arrestFalse arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction...
-- abetting - Falsified evidenceFalsified evidenceFalse evidence, forged evidence or tainted evidence is information created or obtained illegally, to sway the verdict in a court case. Also, misleading by suppressing evidence can be used to sway a verdict; however, in some cases, suppressed evidence is excluded because it was found hidden or...
- IntimidationIntimidationIntimidation is intentional behavior "which would cause a person of ordinary sensibilities" fear of injury or harm. It's not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened.Criminal threatening is the crime of intentionally or...
- Police brutalityPolice brutalityPolice brutality is the intentional use of excessive force, usually physical, but potentially also in the form of verbal attacks and psychological intimidation, by a police officer....
-- abetting - Prosecutorial corruptionCorruption in local governmentCertain demographic factors may exist within a municipality that can lead to or encourage corruption within a local government. Demographic factors pertain to demography which is the study of human population statistics, changes, and trends including personal characteristics of humans like...
- Political repressionPolitical repressionPolitical repression is the persecution of an individual or group for political reasons, particularly for the purpose of restricting or preventing their ability to take political life of society....
- Racial profilingRacial profilingRacial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to engage in enforcement...
- Sexual abuseSexual abuseSexual abuse, also referred to as molestation, is the forcing of undesired sexual behavior by one person upon another. When that force is immediate, of short duration, or infrequent, it is called sexual assault. The offender is referred to as a sexual abuser or molester...
- Surveillance abuseSurveillance abuseSurveillance abuse is the use of surveillance methods or technology to monitor the activity of an individual or group of individuals in a way which violates the social norms or laws of a society. Mass surveillance by the state may constitute surveillance abuse if not appropriately regulated....
-- abetting - TestilyingTestilyingTestilying is a United States police slang term for the practice of giving false testimony against a defendant in a criminal trial. It is typically used to "make the case" against someone they believe to be guilty when minor irregularities during the suspect's arrest or search threaten to result...
-- Subornation of perjurySubornation of perjuryThe legal term subornation of perjury describes the crime of persuading a person to commit perjury; and also describes the circumstance wherein an attorney causes or allows another party to lie...
Abuses of discretion
Prosecutors are given discretion about how they conduct their business. However, while some practices are not illegal, they may be seen as abusive and in need of reform, particularly by defendants seeking to avoid responsibility for their actions, and the criminal defense industry:- Selective prosecution, perhaps required for lack of resources, but potentially corrosive.
- Capture of the grand juryGrand juryA grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
, misusing it as a tool for inquisitorial abuse, or excluding citizen complaints from being heard. - Plea bargaining abuses, such as seeking testimony in exchange for leniency. This may solicit perjuryPerjuryPerjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
or falsified evidence. - “Horsetrading”, the practice of colluding with defense attorneys to agree to get some of their clients to plead guilty in exchange for letting others off.
- Threatening public officials, especially judges, with prosecution if they don't unduly support their cases.
- Tainting of jury pools with public statements by prosecutors that are either inaccurate, exaggerated, unsupported by evidence or that could be inadmissible at trial, and such statements become widely promulgated by the media.
- Prosecutors causing depositions in a related civil trial which were likely to yield exculpatory evidence to be stayed until a criminal trial concludes without the benefit of that exculpatory evidence.
- Prosecutors naming a host of “unindicted co-conspirators” in conspiracyConspiracy (crime)In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
cases to intimidate potential defense witnesses with threats of retaliatory prosecution. - Prosecutors using their Peremptory ChallengesPeremptory challengePeremptory challenge usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason...
to remove from the jury anyone with relevant experience in the complex subjects of a trial. Defense attorneys often use similar tactics. Both attempt to prevent a juror's technical knowledge from interefering with the credibility of their expert witnessExpert witnessAn expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
es. - Prosecutors pursuing criminal penalties for selected industry practices in Corporate America when regulatory intervention would be more appropriate. For example, prosecuting a mechanic for minor violations of the Clean Water ActClean Water ActThe Clean Water Act is the primary federal law in the United States governing water pollution. Commonly abbreviated as the CWA, the act established the goals of eliminating releases of high amounts of toxic substances into water, eliminating additional water pollution by 1985, and ensuring that...
rather than affording the opportunity for the mechanic to correct his error and pay the appropriate fines. - Prosecutors using multidefendant trials to get defendants to turn on one another in the court room, as judges may be reluctant to allow separate trials in multi-defendant cases.
See also
- Selective ProsecutionSelective prosecutionIn jurisprudence, selective prosecution is a procedural defense in which a defendant argues that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute...
- Malicious ProsecutionMalicious prosecutionMalicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
- Harmless errorHarmless errorA harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...
External links
- Discovery violations have made evidence-gathering a shell game, The Pittsburgh Post-Gazette, November 24, 1998