Definition of Prosecutorial Misconduct

The Center for Prosecutor Integrity defines prosecutorial misconduct as any conduct, intentional or inadvertent, during the course of prosecution that:

1. Violates the applicable code of professional ethics,
2. Breaks a pertinent law, or
3. Prejudices, or appears to prejudice the administration of justice

Inadvertent Errors

Some cases of prosecutorial misconduct are inadvertent. Many of these inadvertent errors are avoidable. For example, the Texas District and County Attorneys Association (TDCAA) analyzed a number of cases of prosecutorial misconduct involving unintentional Brady violations. The TDCAA concluded, “in each of these cases, a Brady violation could have been avoided if the prosecutor’s office had an open-file policy” (1).

Prosecutors have a duty to take reasonable steps to prevent errors by such means as establishing office policies, fulfilling CLE requirements, and other measures. Prosecutors in a supervisory capacity have a duty to provide training and ongoing oversight to their employees.

Why Does the Registry Include ‘Harmless-Error’ Cases?

The Registry of Prosecutorial Misconduct includes cases of prosecutorial misconduct deemed to represent “harmless error” because these cases serve as sentinel events that often point to broader problems. In addition, the judicial application of the “harmless error” doctrine has been found to be inconsistent and arbitrary (2).

Do All Instances of Misconduct Warrant the Imposition of Sanctions?

No. Some cases of misconduct have no effect on the administration of justice, or for other reasons do not merit sanctions.

Citations

1. Texas District and County Attorneys Association. Setting the Record Straight on Prosecutorial Misconduct. p. 14. (2012). http://www.tdcaa.com/reports/setting-the-record-straight-on-prosecutor-misconduct
2. Kathleen Ridolfi & Maurice Possley. Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009. pp. 21-24. (2010).