by Casey J. Bastian

Prosecutors are charged with the solemn duty to ensure our criminal justice systems function in an impartial, fair, and faithful manner. To that end, prosecutors are afforded broad discretionary powers concerning the implementation of their sacred duties: who to charge and with what crimes, requesting appropriate sentences, and conducting criminal prosecutions.

Instances of prosecutorial misconduct, even allegations of misconduct, destroy the faith in our systems of justice held by members of the public. Any hint of a prosecutor failing to uphold the highest standards of their office is quite troubling. Whether those failures are accidental or intentional does not matter. The detrimental impact of all allegations of prosecutorial misconduct goes beyond any one individual case, impugning faith in the system as a whole.

Using state and federal data from within the state of Pennsylvania, researchers with the Quattrone Center for the Fair Administration of Justice (“Center”) analyzed judicial opinions published between 2000–2016. This project was an effort to reveal the scope of alleged prosecutorial misconduct in Pennsylvania. The Center, which is based at the University of Pennsylvania Carey School of Law, made a disturbingly clear assessment: “The lack of transparency about the extent of prosecutorial misconduct in the U.S. undermines the legitimacy of the justice system.” In response to their report, other researchers have suggested that their findings in Pennsylvania are likely representative of most jurisdictions in the U.S.

The Center’s findings were published in an 85–page report titled, “Hidden Hazards: Prosecutorial Misconduct Claims in Pennsylvania, 2000-2016.”

The report states, “What became clear during our review is that the true extent of prosecutorial misconduct eludes full analysis due to a number of systemic factors keeping such incidents from scrutiny.” The report not only revealed the frequency of alleged misconduct but outlined 10 recommendations to address these systemic issues. Five of the recommendations focus on preventing misconduct, while the other five are meant to enhance transparency and accountability.

To ascertain the scope of allegations of misconduct, the Center searched for two terms. Those terms were “prosecutorial misconduct” and citations to “Brady v. Maryland,” 373 U.S. 83 (1963). In Brady, the Supreme Court of the United States (“SCOTUS”) found that suppression of favorable evidence by the government violates the Fourteenth Amendment’s Due Process Clause. SCOTUS also instructed that whether the suppression was the result of either good or bad faith prosecutorial conduct does not matter. For the purposes of this research, the Center had to first define what the term “prosecutorial misconduct” means. The report adopts the definition as being “any conduct by a prosecutor that does not comport with a law or procedural or ethical rule governing prosecutorial activity at any point in a criminal proceeding, regardless of the prosecutor’s intent.”

This comports with the objective and literal sense as applied by Pennsylvania courts. The term prosecutorial misconduct frequently implies a sense of moral failure as well. Such as intentionally hiding or destroying evidence or information that demonstrates innocence. The Supreme Court of Pennsylvania first used the term in Commonwealth v. Wright, 266 A.2d 651 Pa. 1970). Since then, the term has been used to “evaluate many different types of claims regarding prosecutorial actions, including both intentional acts and accidental errors,” according to the report. While some may view certain instances of prosecutorial misconduct as “quite serious,” and others viewed as “more trivial” or “technicalities,” each pose a potential negative impact upon the criminal justice process—a process that is fundamentally premised on fairness and integrity. While it is understandable to ascribe a moral flaw within allegations of prosecutorial misconduct, it is simply a description of unpermitted conduct. As such, it conveys “no assessment of intentionality or amorality,” as intent can be difficult to discern.

A total of 7,207 allegations of misconduct were discovered within the 17-year period that was analyzed. There were two identified categories of misconduct “responsible for over half the claims identified” in the data. Allegations of improper withholding of exculpatory evidence was the basis in 2,114 cases, representing 29.3% of all allegations. The second highest number of allegations, 1,915 cases, or 26.6%, arose from improper comments made by prosecutors while making closing statements. Other areas of prosecutor conduct supporting allegations of misconduct include improper remarks during trial, 719 cases, or 10%; presenting false evidence, 382 cases, or 5.3%; and an “other” catch–all category, encompassing a total of 958 cases, or 13.3% of identified claims. The report reveals that courts allowed 1,774 of these allegations to go unaddressed. Of the 5,432 allegations that courts did address, misconduct was only actually found in 204 cases or a mere 3.8%. Of those 204, almost none resulted in a court finding that the defendant had been deprived of a fair trial.

The report suggests that the number is “almost certainly a substantial undercount.” The primary reason for this is that only cases that went to trial were able to be examined. In Pennsylvania, over 70% of all cases are resolved through guilty pleas. This is similar to almost all state jurisdictions across the U.S. Federal prosecutions are shown to be resolved via pleas of guilt in roughly 97% of all cases.

The report states that, “The few cases that go to trial ... provide the only fully visible part of the criminal case universe. In all other cases—those that are withdrawn, dismissed, diverted, or result in a guilty plea—misconduct or other prosecutorial error remain mostly or completely hidden, a critical mass of the criminal justice iceberg that is always beneath the surface, outside public view, and posing the biggest risk of undetected misconduct.” As it is the duty of a prosecutor to disclose exculpatory evidence prior to trial, “it is possible for a prosecutor to selectively withhold exculpatory information known to police and prosecutors from the defendant, secure a negotiated plea, and close the case file without revealing the exculpatory information,” according to the report. And that is truly terrifying. As the report notes, this type of prosecutorial strategy “would be difficult to uncover and could effectively hide any negligence, reckless, or deliberate prosecutorial misconduct.”

It appears that we may not ever be able to identify when every act of misconduct occurs. However, it is clear that prosecutorial misconduct happens far more often than we may want to believe. The National Registry of Exonerations (“NRE”) recently conducted a study of 2,400 exonerations. The NRE found that official misconduct, i.e., misconduct committed by any government actor, was a factor in 54% of those exonerations; prosecutorial misconduct was a factor in 30% of those exonerations.

News agencies across America reveal acts of misconduct on a daily basis. These anecdotal tales provide a troubling glimpse into the potential level of inaccurate and illegitimate convictions across the U.S. criminal justice systems. The report notes that “despite this, we have found no jurisdiction in the United States that regularly assembles and publishes information about how frequently allegations of prosecutorial misconduct are made, how often they are upheld, and what actions are taken when misconduct has been identified.” This leaves the society writ large with misleading assurances that misconduct is rare and quickly addressed. This current lack of oversight lends many to believe that no additional oversight or accountability is required. As such, “citizens lack the ability to make even the most cursory inquiry into whether their prosecutors operate within the rules.” The report also finds that “the increasing number of demonstrated cases of prosecutorial misconduct, many of which have put innocent men and women in prison for decades, sows distrust and discontent throughout the community, making the jobs of ethical, high-quality prosecutors even more challenging.”

Some of the recommendations in the report made by the Center include the following. For prevention of misconduct, the Center recommends: 1) Require Open File Discovery; 2) Adopt ABA Model Rules 3.8(g) and (h); 3) Certify Compliance with Brady prior to plea or trial; 4) Enhance prosecutorial self-regulation and reporting; and 5) Formally reviewing cases of prosecutorial misconduct to identify opportunities for improvement. For accountability, the Center recommends: 6) Require automatic reporting of misconduct; 7) Eliminate absolute immunity for prosecutors; 8) Create a civil tort remedy for individuals who are harmed by intentional or grossly negligent prosecutorial misconduct; 9) Consider a criminal statute specific to intentional suppression of evidence and apply other statutes relevant to prosecutorial misconduct; and 10) Establish a prosecutorial oversight commission to identify and address prosecutorial misconduct.

The report should serve as a catalyst to engage citizens and other stakeholders in the necessary conversations about prosecutorial accountability. This is the only way by which we can enhance the role of the prosecutor and improve the confidence and trust in our justice systems. We must demand accountability, integrity, and fairness from prosecutors who are among the most powerful citizens in our country yet rarely are ever held to answer for their misconduct that often have devastating consequences for their victims and loved ones. 

Sources: Quattrone Center for the Fair Administration of Justice, “Hidden Hazards: Prosecutorial Misconduct Claims in Pennsylvania, 2000-2016”; thecrimereport.org

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