Can You Get a New Trial for Prosecutorial Misconduct? 

What is Prosecutorial Misconduct?

Prosecutorial misconduct is the use of unconstitutional or unfair methods to obtain a criminal conviction.   A defendant is entitled to a fair hearing so that the jury decides guilt or innocence based upon all facts that are admissible and relevant.  A defendant is also entitled to fully investigate the facts of the case, subpoena witnesses and effectively cross examine.  When a prosecutor interferes with these rights a defendant can claim prosecutorial misconduct.

What are some Types of Prosecutorial Misconduct? 

The most common violation is Withholding Evidence.  Under the United States Constitution and often under state law as well, prosecutors must disclose evidence that assists the defense in defending the case. The prosecution does not have to work for the defense but it must disclose what it knows.

Improper Arguments can include comments on a defendant's right to remain silent or implications that the prosecutor knows facts that are not in the trial evidence but which prove guilt.

When Can Prosecutorial Misconduct Justify a New Trial?

The United States Supreme Court has made it clear that the key factor in due process analysis regarding alleged prosecutorial misconduct is the fairness of the trial, rather than the culpability of the prosecutor (Mahaday v. Cason, 367 F.Supp.2d 1107 (2005)). The primary concern is the effect of the misconduct on the trial itself, not the nature or blameworthiness of the misconduct (People v. Uribe, 199 Cal.App.4th 836 (2011)).

When Does Prosecutorial Misconduct Violate Due Process?

For prosecutorial misconduct to be considered a due process violation, it must be demonstrated that the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process" (Marshall v. Hendricks, 307 F.3d 36 (2002); Towery v. Schriro, 641 F.3d 300 (2010)). This standard is derived from the Supreme Court's decisions in Donnelly v. DeChristoforo and Darden v. Wainwright (Towery v. Schriro, 641 F.3d 300 (2010)).

The Two-Step Process for Analyzing Claims

Courts typically use a two-step process to analyze claims of prosecutorial misconduct:

1. Determine Improper Conduct: First, they determine whether the prosecutor acted improperly.

2. Assess the Impact: Second, they assess whether the improper conduct was harmless beyond a reasonable doubt or if it influenced the jury's verdict. This includes considering the entire proceeding, curative instructions, and the weight of the evidence against the defendant (United States v. Baca, 409 F.Supp.3d 1169 (2019)).

Fundamentally Unfair Trials

Even if the prosecutor's conduct is deemed undesirable or universally condemned, it does not constitute a due process violation unless it rendered the entire trial fundamentally unfair (Mahaday v. Cason, 367 F.Supp.2d 1107 (2005)).

Inherently Prejudicial Actions

In some cases, certain procedures or actions by the prosecutor are deemed so inherently prejudicial that they can be considered a violation of due process without a specific showing of prejudice (U.S. ex rel. Griffith v. Hulick, 587 F.Supp.2d 899 (2008)).

Criminal defense expert and Top 100 Trial Lawyer Daniel Horowitz aggressively defends high stakes criminal cases.