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What is Prosecutorial Misconduct?

By Christy Bieber
Updated May 17, 2024
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Prosecutorial misconduct refers to inappropriate or illegal behavior by a prosecutor. The behavior may be illegal under the law of the jurisdiction in which the prosecutor works. Alternatively, it may simply be a violation of the code of ethics by which all prosecutors are bound to abide.

Prosecutors are officers of the court. This means they have a special responsibility. Only prosecutors can institute criminal actions against a person; private citizens can sue in tort, family court or other areas of law but cannot bring criminal charges.

Because criminal charges carry the most serious potential sanctions, prosecutors are held to a high standard of ethics. For example, almost every country requires prosecutors to swear an oath that they will prosecute crimes only if there is reasonable evidence that the accused committed a wrong. Prosecutors may not bring criminal actions as a result of personal vendettas.

The law imposes certain restrictions on prosecutors. The specific laws for prosecutors vary depending on the jurisdiction and country. Many countries have some similar rules though. For example, witness tampering — which can mean anything from coercing or intimidating a witness to getting a witness to lie on the stand or concealing a witness — is generally not permitted.

If a prosecutor engages in an improper action by violating a law, this is a form of prosecutorial misconduct. This may be punishable by a loss of a license to practice law. In some cases, if the prosecutor's misconduct was egregious enough, he could face criminal charges or be held in contempt of court.

A code of ethics also exists for prosecutors in most countries. For example, in the United States, prosecutors must comply with the Code of Professional Responsibility that applies to all attorneys. In Alberta, Canada, prosecutors must comply with Code of Conduct for Crown Prosecutors. Failure to comply with the code of ethics is also considered prosecutorial misconduct, although the penalties for such failure are usually limited to loss of the license to practice law and do not encompass criminal sanctions.

High standards are set to avoid prosecutorial misconduct because accused people are guaranteed the right to a fair trial in most countries. In England, the English Bill of Rights guarantees this; in the United States, the Constitution ensures this right. Prosecutorial misconduct could interfere with or jeopardize a defendant's protected right to a fair trial and could thus jeopardize the foundations of the justice system as a whole.

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Discussion Comments
By anon998767 — On Aug 22, 2017

When there is prosecutor misconduct or a code of ethics violation, who do you complain to?

By Crispety — On Aug 08, 2011

@Subway11 - I understand what you are saying, but I don’t see that as prosecutorial misconduct because the victim was the one that picked the guy out of a line up.

I know that there are problems with eye witness testimony but I really don’t think the prosecutor did anything wrong here.

I do think that prosecutorial misconduct occurred in a case that I read about involving a man that was falsely convicted and placed on death row and after serving eighteen years in jail was finally released.

It was later revealed that the prosecutor that tried the case refused to give up blood DNA evidence that would have set him free. They also used the defendant’s prior criminal record to stop him from speaking at his trial.

The defendant’s attorney fought for a new trial and the defendant was acquitted in the second trial. This is really awful that this poor man sat in prison and was almost executed for a crime that he clearly did not commit with available evidence that proved his innocence. It is really a disgrace.

By subway11 — On Aug 07, 2011

I realize that most prosecutors got into the field because they wanted to protect the rights of victims and really give them a voice in the justice system, but I think that there are some cases that go to trial even though there is evidence to the contrary.

I was watching a documentary the other day about the life of a prisoner’s wife and she discussed her husband’s conviction at length and was able to secure a private investigator that found evidence to prove that her husband did not commit the crime.

This man was 6’1” tall and the real suspect was only 5’7”. The problem with this case was that the defendant had a prior criminal record and the victim gave eye witness testimony that pulled him out of a line up. These two factors convicted the man.

I think that this was a case of prosecutorial misconduct because the prosecutors should have done a more thorough job before charging the defendant with the crime. This innocent man spent ten years in prison and I think that the prosecutor may have continued with the case because they saw the case as an easy victory and it will have improved their record of convictions.

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