Prosecutorial Misconduct

Jay Leiderman
By: Jay Leiderman
November 12 2016

Virginia Lawyers Weekly


Bar charges prosecutor with discovery misconduct (“The Virginia State Bar has charged a prosecutor with ethical misconduct for allegedly failing to share helpful evidence with a criminal defendant’s attorney. Through her attorney, the prosecutor said she did not know about most of the evidence in question, and did not believe that other evidence could have helped the defense.”)

In jurisprudence, prosecutorial misconduct is “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.” It is similar to selective prosecution.

Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland explained prosecutorial misconduct meant “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”

Prosecutors are entrusted with determining who will be held accountable when a crime occurs. They hold a great deal of power. They work with the police as they gather evidence and build a case against a suspect and then they take that case to court and are charged with convincing a jury of the guilt of the suspect. First a foremost, it is the prosecutor’s job to seek justice and present the judge and jury with facts and legal arguments that result is the conviction of the guilty defendant.

Sometimes, prosecutors find evidence that would tend to exonerate the person they are trying to convict. Because Prosecutors are charged with presenting the truth, the prosecution is obligated to turn over all exculpatory evidence to the defense.

prosecutorial misconduct
Jay Leiderman