3 of 4: Common Arguments in a Post-Conviction Argument – Misconduct by the Prosecution

Misconduct by the prosecution can transpire in a multitude of ways, such as suppression of evidence and making improper remarks to a jury. In 1935, the United States Supreme Court stated in Berger v. United States that a prosecutor “…may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Further, in 1987, the Supreme Court stated in Greer v. Miller that[p]rosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process.”

So, what actually constitutes prosecutorial misconduct and how do you prove it? The Court stated in Greer v. Miller that[t]o constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Some examples that the Courts have determined are acts that rise to the level of prosecutorial misconduct include making improper arguments, provoking a mistrial, suppression or tampering with evidence, making prejudicial statements to the media, and discrimination during jury selection.

Each of these acts of prosecutorial misconduct should be evaluated based on the facts of each individual case. For example, the Supreme Court, in Parker v. Matthews, evaluates ‘making improper arguments’ based on four factors: (1) the likelihood that the remarks tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant. All of these factors are very dependent on the specific facts of each case.

It also matters where the prosecutorial misconduct occurred since each federal circuit and state may evaluate the act slightly differently. For example, the Sixth Circuit goes on to say in United States v. Crayton that “to warrant a new trial… prosecutorial misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial.” But the Eighth Circuit concludes something slightly different in United States v. Hernandez, stating that “appellate courts should not reverse for such improprieties unless persuaded that they probably prejudiced the defendant and that the prejudice was not removed effectively by the trial judge before submission of the case to the jury.”

If you believe that your case has been affected by prosecutorial misconduct, contact us today!