CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

Prosecutorial misconduct is any improper, unethical or illegal behavior by the government in the prosecution of a criminal defendant including:

• Improper withholding or disclosure of evidence
• Failure to disclose benefits provided to witnesses including immunity from prosecution
• Interference with attorney-client relationship of defendant and counsel
• Threatening witnesses
• Impugning character and credibility of defense counsel
• Making inflammatory remarks
• Comments regarding defendant’s post-Miranda silence or refusal to testify at trial

Criminal prosecutors have long been presumed to operate under enhanced ethical duties. As stated in Berger v. United States, 295 U.S. 78, 88, 79 L.Ed. 1314 55 S.Ct. 629 (1935), a prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. ”

Recognizing this ethical duty, the ABA Model Rules of Professional Conduct include a special standard, Model Rule 3.8, that applies to prosecutors in criminal cases. The comment to Rule 3.8 observes that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

In criminal cases there is “an alarming number of convictions of innocent people at the hands of prosecutors who focus on their duties as advocate, to the apparent exclusion of their responsibility to administer justice,” moderator James M. McCauley, ethics counsel for the Virginia State Bar, asserted that “it is rare for prosecutors to face disciplinary charges even for clear violations of Rules 3.3 or 3.8.” (Model Rule 3.3 requires lawyer’s candor towards tribunals.)

A large percentage of cases involving allegations of prosecutorial misconduct include not just errors in judgment, but intentional misconduct involving suppression of evidence or the presentation of false evidence. In these cases there is an almost total lack of accountability for prosecutor’s ethical lapses and rarely if ever are prosecutors disciplined.

In a study by the Center for Public Integrity analyzing cases of prosecutorial misconduct in each state since 1970, for example in New York, “of 1,283 allegations of prosecutorial misconduct, 277 resulted in a ruling that the conduct prejudiced the defendant and the conviction was reversed, yet none of these prosecutors was disciplined,” according to law professor Ellen Yaroshefsky, executive director of Cardozo Law School’s Jacob Burns Ethics Center in New York.

“[S]ome prosecutors will ignore the ethics rules, but most prosecutors don’t want to do anything to jeopardize a conviction,” said Amie L. Clifford, National College of District Attorneys.

Prosecutorial misconduct is a systemic problem and criminal defendants and defense counsel must take this in consideration when considering a trial strategy or plea agreement. If the defendant alleges prosecutorial misconduct based on actions that occurred during trial and trial counsel did not object at the time, the defendant may be procedurally barred from raising the claim under a section 2255 motion unless the misconduct was not discovered until after trial.

Some defendants have obtained relief when able to demonstrate trial counsel’s failure to object demonstrated ineffective assistance of counsel. Generally this occurs on direct appeal rather than through a section 2255 motion. Most prosecutorial misconduct claims that could have been raised on direct appeal will result in a procedural default. The defendant must demonstrate actual prejudice because of the alleged violation or show that failure to consider the claim will result in a substantial miscarriage of justice.

A. Post-Conviction Prosecutorial Misconduct Claims

The “cause and justice” standard is a critical determining factor for trial error issues raised under section 2255 motions or habeas corpus. See, United States v. Frady, 456 U.S. 152, 71 L.Ed.2d 816, 102 S.Ct. 1584 (1982). The defendant must demonstrate a legally valid reason why an error at trial was not preserved by objection, not raised on direct appeal and prove you were prejudiced by the error.

The Supreme Court has addressed the issue of prosecutorial conduct most notably in Donnelly v. DeChristoforo, 416 U.S. 637, 40 L.Ed.2d 431, 94 S.Ct. 1868 (1986). The standard of review for habeas petitions alleging prosecutorial misconduct is the “narrow one of due process, and not the broad exercise of supervisory power.” The defendant must be able to demonstrate that you were denied “due process” because of the improper actions of the prosecutor and show that the outcome might well have been different without the misconduct.

Section 2255 motions or habeas corpus petitions involving prosecutorial misconduct include a Brady claim: (1) prosecution suppressed evidence; (2) evidence suppressed was favorable to the defense or exculpatory; (3) evidence suppressed was material. There is no violation if defendant or counsel knows of exculpatory evidence before trial. Prosecutor’s failure to notify defense counsel of material exculpatory evidence and arguing false evidence to the jury was misconduct serious enough to warrant the granting of a writ of habeas corpus. Brown v. Borg, 951 F.2d 1011 (9th C i r . 1991).

Section 2255 motions or habeas corpus petitions involving prosecutorial misconduct may also include evidence of tampering with the grand jury proceedings, egregious and outrageous conduct constituting a gross miscarriage of justice, vindictiveness or selective prosecution or outright threats to accept a plea agreement and waive the right to trial by jury.

B. Selective Prosecution Claim

Selective prosecution, if based on Improper motives, can violate the equal protection clause of the Fourteenth Amendment. Mere conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Oyler v. Boles, 368 U.S. 448, 7 L.Ed.2d 446, 82 S.Ct. 501 (1962).

Selectivity in prosecution is not impermissible. The defendant must show that the selection was deliberately based on an unjustifiable standard. In making prosecutorial decisions, the government may consider whether the potential defendants have, by their public statements or otherwise, made clear their actual or intended participation in the illegal activity. United States v. Wayte, 710 F.2d 1385 (9th Cir. 1983), cert. granted in part, 467 U.S. 214, 81 L.Ed.2d 362, 104 S.Ct. 2655 (1984) and judgment aff’d, 470 U.S. 598, 84 L.Ed.2d 547, 105 S.Ct. 1524 (1985).

C. Vindictive Prosecution Claim

The prosecutorial practice of threatening a defendant with increased charges if he does not plead guilty and following through on that threat if the defendant insists on his right to stand trial does not create a presumption of vindictive prosecution. Jeffers v. Lewis, 38 F.3d 411 (9th Cir. 1994).

A presumption of vindictiveness may be inferred even in the absence of evidence that the prosecution acted with a retaliatory motive in obtaining the challenged indictment. The presumption arises when the totality of circumstances surrounding the prosecutorial decision at issue suggest the appearance of vindictiveness. Once the presumption is established, the court must determine whether the prosecutorial decision was justified by either independent reasons or intervening circumstances sufficient to dispel the appearance of vindictiveness. The prosecution bears the burden. United States v. Griffin, 617 F.2d 1342 (9th Cir. 1980).

In vindictive prosecution cases, it is the government’s attempt or threat to “up the ante” by bringing new or more serious charges in response to the exercise of protected rights that violates the due process guarantee. That practice is proscribed to prevent prosecutors from chilling defendant’s exercise of procedural rights through the threat that more severe or additional charges will be brought in retaliation. United States v. Robison, 644 F.2d 1270 (9th Cir. 1981).

D. Government Misconduct Claim

A conviction will be reversed on the basis of governmental misconduct but only if the misconduct may have prejudiced substantial rights of the accused. There may be a reversal for the government’s improper acquisition of defense strategy but only where there was a realistic possibility of injury to the defendant or benefit to the state. There may be a reversal, too, if the government intimidated a defense witness to induce her to flee the country, but there must be proof of such intimidation. United States v. Cross, 928 F.2d 1030 (11th Cir. 1991).

In determining whether prosecutorial misconduct caused the accused substantial prejudice, the court of appeals looks at three factors: (1) the severity of the misconduct; (2) the measures adopted to cure the effects of the misconduct; and (3) the certainty of conviction in its absence. United States v. Valentine, 820 F.2d 565 (2nd Cir. 1987).

Unprofessional conduct on the part of the defense counsel does not open the door to similar conduct by government counsel. United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974)(disapproved on other grounds by United States v. Young, 470 U.S. 1, 84 L.Ed.2d 1, 105 S.Ct. 1038 (1985)

The government must act with great care when engaging in the practice of paying witnesses for more than expenses. A defendant’s right to be apprised of the government’s compensation arrangement with the witness and to inquire about it on cross-examination, must be vigorously protected. United States v. Lipford, 203 S.3d 259 (4th Cir. 2000).

The bribery statute 18 U.S.C.A. §201(c)(2 proscribing giving a thing of value for a witness’s testimony does not prohibit the United States from acting in accordance with long-standing practice and statutory authority to pay fees, expenses, and rewards to informants even when the payment is solely for testimony, so long as the payment is not for or because of any corruption of truth of testimony.

E. Office of Professional Responsibility Complaints and Disciplinary Action

Complaints against United States Attorneys if substantial can be filed with the Office of Professional Responsibility at the Department of Justice. Ethics violations can be filed with the State Bar Association for clear violations of Model Rules 3.3 or 3.8.

The Office of Professional Responsibility is the investigative unit of the Department of Justice. Primarily they investigate wrongdoing by federal officials and claims of prosecutorial misconduct by United States Attorneys. They have authority to prosecute any violation of the law, but in practice rarely are charges brought against prosecutors.