Prosecutorial Misconduct: When Prosecutors Misbehave


prosecutorial misconduct

It has often been said that the criminal justice system favors the accused by affording defendants significant protections and rights at all stages of a criminal proceeding. While some victim advocates claim this is unfair because victims do not have many rights, the American criminal justice system should work to diligently protect the constitutional and statutory rights of defendants first and foremost. After all, if wrongly convicted it is the defendant who must serve the time in prison and/or face execution for the crime, not the victim.

To that end, state law severely restricts the actions that a prosecutor can and cannot take during a criminal prosecution. In many cases, violations of these restrictions (even innocuous ones) can result in the reversal of a conviction or the granting of a new trial to the defendant. In more egregious circumstances, the case against the defendant may be dismissed entirely, and the prosecution prevented from refiling the case.

How Prosecutors Cross the Line

To be certain, there are prosecutors in Arizona that are ethical and take their obligations and duties seriously. These prosecutors usually stay in “safe” territory and refrain from taking any action during a criminal prosecution that might be considered “risky” or “questionable.” However, there are other prosecutors who do take these risks and engage in behavior that is questionable at best. These are the prosecutors who often view their job as requiring them to “get the conviction” at any cost. In the process of doing so, they may engage in one or more acts of misconduct, such as:

  • Discovery violations, i.e., not turning everything over to the defendant for his or her review. Prosecutors are not allowed to “ambush” the defendant with new evidence or information at trial if the prosecutor could have produced the evidence earlier. Also, prosecutors have an obligation to take steps to uncover favorable, exculpatory, and material evidence that may be in its possession or the possession of a law enforcement agency and turn this material over to the defendant. A prosecutor who fails to do so may find his or her case dismissed and may face disciplinary action by the Arizona Supreme Court.
  • Improper arguments at trial. A prosecutor represents the State in a criminal proceeding, and so he or she does have an obligation to the State to present a criminal case zealously. There are limits to this zealousness, however. At trial, the prosecutor cannot call the defendant names such as liar, predator, criminal, or deviant. Nor can the prosecutor comment on the believability of the defense’s theory: calling the defendant’s version of events a “lie,” a “fairy tale,” or a “smokescreen” can all be considered improper. Whether an improper argument or comment made at trial justifies the reversal of a conviction will usually depend on how flagrant the statement is, the strength of the case against the defendant, and whether there is any likelihood the statement affected the outcome of the trial.
  • Treating defendants unfairly. While a prosecutor has broad discretion to prosecute those cases he or she deems appropriate, a prosecutor cannot unlawfully discriminate against defendants on the basis of race, ethnicity, or any other protected classification. In other words, a prosecutor cannot decide to prosecute only African-Americans for the crime of possession of marijuana while declining to prosecute or offering lenient plea bargains to others charged with the crime.


Be alert for ways the prosecutor in your case may be engaging in misconduct. If you believe the prosecutor is stepping over the line in some way, you should bring this to the attention of the court through an appropriate motion. A court that finds a prosecutor has engaged in unfair or unethical tactics has broad powers to reverse convictions or dismiss cases as a means of protecting your rights and punishing the prosecutor.  For more information read an interesting article in AZCentral on prosecutorial misconduct in criminal cases.

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