Tuesday, November 5, 2019


The word “misconduct” has nasty connotations.   “Misconduct” has been defined as “intentional wrongdoing” and specifically “deliberate violation of a law or standard especially by a government official.”[1]   When referring to alleged prosecutorial error, some appellate courts have elevated the prosecutor’s conduct to that tantamount to criminal behavior.  For instance, State v. Campbell, 23 P.3d 176, 181 (2001), observed:  “The question of whether a particular prosecutor has been guilty of misconduct in the trial of a criminal case is the subject of some relatively controversial recent decisions by our Supreme Court and by this court.  .  .  .”  (Emphasis added.).  

When a trial judges commit trial errors and are reversed for them, appellate courts do not consider finding the trial judges guilty of “judicial misconduct.”  How receptive would an appellate court bench be to finding “trial judge misconduct” when the allegation on appeal refers to trial error, not bad or dishonest conduct by the trial judge.  Also, it is ironic when an appellate court applies the deprecatory description of “prosecutorial misconduct” in rendering a decision on alleged epithets employed by a prosecutor in closing.  “Trial error” is a more apt description for all but the few cases where the prosecutors’ conduct actually fits the description of “misconduct.”  

This discussion suggests putting an end to use of the phrase “prosecutorial misconduct” when it is an inaccurate description, and that is a small part of why this article is entitled “Eradicating ‘Prosecutorial Misconduct.’”  But more significantly, this article and future ones explore significant areas of vulnerability for prosecutorial error that appellate courts  have considered under the rubric “prosecutorial misconduct,” and offer ways to make sure no prosecutorial error is committed.  No matter what the label is, prosecutorial “error” or “prosecutorial misconduct,” we want none of it.

Prosecutors are “ministers of justice.” In its 1935 decision of Berger v. United States, the United States Supreme Court held:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.  He 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."[2] 
The Comment to Model Rule of Professional Conduct 3.8 “Special Responsibilities of a Prosecutor” echoes Berger: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” This is the elevated role of the prosecutor.

The Washington's Supreme Court in State v. Gibson, 75 Wn.2d 174, 177 (1969) stated, "The closing paragraph in State v. Montgomery could well be on the desk of every prosecutor as a constant reminder of the high duties of his office."  Here is the paragraph in that 1909 State v. Montgomery decision:

            It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case.  We know that such officers meet with many surprises and disappointments in the discharge of their official duties.  They have to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal in human life.  But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for.  Their devotion to duty is not measured like the prowess of the savage, by the number of the victims.[3]

Prosecutors rightfully are held to a higher standard of conduct than any other lawyer. The goal of this and upcoming articles is to eradicate not only the misuse of the phrase “prosecutorial misconduct” but also trial error that can be avoided by pointing out danger zones for prosecutors.     


[1] Merriam Webster Dictionary
[2] Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed 1314 (1935).

[3] State v. Montgomery, 56 Wash. 443 (1909).

No comments:

Post a Comment