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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.
Some examples and remedies
In late 1993, the 6th US Circuit Court of Appeals ruled that John Demjanjuk 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 University lacrosse case. In that incident, members of the Duke 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.
Types of misconduct
- False confession
- False arrest -- abetting
- Falsified evidence
- Police brutality -- abetting
- Prosecutorial corruption
- Political repression
- Racial profiling
- Sexual abuse
- Surveillance abuse -- abetting
- Testilying -- Subornation of perjury
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 jury, 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 perjury 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 conspiracy cases to intimidate potential defense witnesses with threats of retaliatory prosecution.
- Prosecutors using their Peremptory Challenges 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 witnesses.
- 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 Act 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.
- Discovery violations have made evidence-gathering a shell game, The Pittsburgh Post-Gazette, November 24, 1998