A guilty verdict in a criminal case can feel like the end of the line, but that’s not always true. If your trial was tainted by errors or misconduct, you can pursue a criminal appeal or otherwise seek post-conviction relief.

There are only a limited number of circumstances that make it possible to appeal your case. One of those is an allegation of prosecutorial misconduct.

What is prosecutorial misconduct?

Criminal prosecutors have an enormous amount of power. And while most use that power ethically and responsibly, some choose to abuse it because they are more concerned with securing a conviction than with executing justice (which are not always the same thing).

Prosecutorial misconduct occurs when a prosecutor violates their code of ethics (or court rules) or breaks the law in the course of prosecuting a case. There are times when prosecutors make honest mistakes, and these can have a negative impact on the defendant’s case. Misconduct, by contrast, is intentional and malicious.

There are numerous ways in which a prosecutor may intentionally violate their code of ethics or break the law. Some examples are discussed below.

Misconduct related to evidence

Cases are won or lost based on evidence. Therefore, it is critical that evidence be complete and accurate. Here are two ways prosecutors may violate evidentiary rules:

Failing to disclose evidence favorable to the defense (exculpatory evidence) – prosecutors are required by law to submit evidence that either shows the defendant to be innocent or that would lead to a lesser punishment for the defendant. But in too many cases, prosecutors withhold this information, a form of misconduct known as a “Brady violation.”

Introducing false evidence into the record – This includes tampering with witness testimony (encouraging a witness to lie) or submitting evidence that the prosecutor knows to be false. This practice is both illegal and a violation of professional ethics rules.

Misconduct related to the jury and the media

Who prosecutors put on a jury and what they say to the media can also greatly bias a case.

Wrongful discrimination in jury selection – this practice is far more common than most people want to admit. It usually involves weeding out jurors who could potentially be favorable to the plaintiff based on a protected trait like race, religion or other personal characteristic. We still see examples of African American defendants being tried by an all-white jury because prosecutors dismissed potential jurors who were African American.

Making prejudicial media statements – when prosecutors release too much information to the press or make public statements about a suspect’s guilt, such actions sway public opinion and make it nearly impossible to find unbiased jurors.

Misconduct in court arguments or procedure

Prosecutors can unfairly sway a jury when they violate court rules, including:

  • Using their closing statements to introduce facts that have not already been presented during the trial
  • Misstating the law to jurors
  • Mentioning evidence that a judge had previously barred from the trial (knowing that it will sway the jury even if a judge tells them to disregard the comments)

Work with an experienced appellate attorney

Not all criminal defense attorneys are qualified to do appellate work. It is a unique type of legal practice. If you or a loved one needs to appeal a criminal conviction, please seek help from an attorney with extensive experience in this area of law.