What is Prosecutorial Misconduct?
When District Attorneys in New York State “cross the line” in prosecuting individuals for alleged crimes for which they are charged. This misconduct can undermine the fairness of the legal process and the integrity of the judicial system.
There are two sets of rules that govern the conduct of prosecutors.
- Laws that govern the fairness of the proceedings over which they have power often refer to a violation of due process.
- Ethical violations that run contrary to codes of ethics in New York State binding all lawyers and prosecutors.
Example of Prosecutorial Misconduct:
A notable case of prosecutorial misconduct involved Alec Baldwin's involuntary manslaughter trial, which was dismissed mid-trial. The judge found that the prosecution had withheld critical evidence from the defense, affecting the trial’s fairness. This included late discovery of potentially relevant ammunition and conflicts of interest involving the resignation of one prosecutor and another serving as a witness. The case was dismissed with prejudice, meaning it cannot be refiled.
Protecting against Prosecutorial Misconduct in New York State:
Criminal Defense Attorneys protect against prosecutorial misconduct by demanding that the District Attorney, the police, and their agents preserve and refrain from destroying all statements of witnesses of prospective witnesses relating to a criminal charge and all exculpatory material. Under, People v. Rosario, 9 N.Y. 2d 286 (1961); Brady v. Maryland, 373 U.S. 83 (1963).
The defense includes reviewing all discovery and conducting an independent investigation of each criminal charge.
Furthermore, New York State Professional Responsibility Rule 3.8 states:
(a) A prosecutor or other government lawyer shall not institute, cause to be instituted or maintain a criminal charge when the prosecutor or other government lawyer knows or it is obvious that the charge is not supported by probable cause.
(b) A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by protective order of a tribunal.
(c) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time: (1) disclose that evidence to an appropriate court or prosecutor’s office; or (2) if the conviction was obtained by the prosecutor’s office:
* notify the appropriate court and the defendant that the prosecutor’s office possesses such evidence unless a court authorizes delay for good cause shown;
* disclose that evidence to the defendant unless the disclosure would interfere with an ongoing investigation or endanger the safety of a witness or other person, and a court authorizes delay for good cause shown; and
* undertake or make reasonable efforts to cause to be undertaken such further inquiry or investigation as may be necessary to provide a reasonable belief that the conviction should or should not be set aside.
* When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.
Additional examples of Prosecutorial Misconduct:
- Police brutality and excessive force
- Wrongful arrest and malicious prosecution
- Unlawful search and seizure
- Warrantless arrest without probable cause
- Racial profiling and discrimination
- First Amendment and free speech violations
- Retaliation
- Unlawful incarceration
- Violation of disability rights
- Commenting on Inadmissible Evidence,
- Intentionally Eliciting Inadmissible And/or Prejudicial Answers from Witnesses,
- Conducting an Improper Cross-examination of the Defendant or Other Defense Witnesses,
- Appealing to Jurors’ Passion or Prejudice,
- Expressing Personal Opinions about the Defendant’s Guilt or a Witness’ Credibility,
- Purposely Misstating the Law or Evidence,
- Improper Name Calling,
- Improper Comment on Right to Silence
- Improper Examination
- Appeal to Religious Authority
- Impugning The Defense
- Engaging in Discriminatory Jury Selection
- Intimidating a Witness
- Failing to Disclose Evidence Favorable to the Accused.
The District Attorney's Obligations
In the pursuit of justice, the District Attorney (DA) and the Assistant responsible for a case, or any prosecuting agency not involving the DA, must adhere to stringent obligations. This includes the timely disclosure of information favorable to the defense as mandated by landmark cases such as Brady v. Maryland (373 US 83, 1963), Giglio v. United States (405 US 150, 1972), and People v. Geaslen (54 NY2d 510, 1981). These requirements are rooted in the United States and New York State constitutions and are further outlined in Criminal Procedure Law (CPL) Article 245 and Rule 3.8(b) of the New York State Rules of Professional Conduct.
Responsibilities of the District Attorney
1. Duty to Disclose Favorable Information: The DA and their team must uncover and share any favorable information known to others acting on the government’s behalf, including law enforcement agencies. This involves thorough communication with investigative personnel and reviewing all relevant files.
2. Types of Favorable Information: Favorable information encompasses a broad range of data that can support the defense, including:
- Impeachment Evidence:
- Benefits or promises made to witnesses.
- Witness’s prior inconsistent statements.
- Witness’s criminal history.
- Motives or biases of witnesses.
- Witness’s ability to perceive or recount events accurately.
- Exculpatory Evidence:
- Information that exonerates or reduces the degree of the offense.
- Data supporting potential defenses.
- Evidence mitigating the defendant's culpability or punishment.
- Information undermining the defendant’s identity as the perpetrator.
- Data favorable to suppression motions.
3. Timely Disclosure: Favorable information must be disclosed promptly, following constitutional standards and the timing provisions in CPL Article 245. The obligation to disclose is ongoing, and prosecutors must disclose information as soon as it is received without delay.
4. Protective Orders and Sanctions: A protective order can be issued for good cause under CPL 245.70. Failure to disclose information as required can result in sanctions as per CPL 245.80. Only willful and deliberate non-compliance will lead to personal sanctions against a prosecutor.
The District Attorney's obligations ensure the fairness and integrity of the justice system. By adhering to these guidelines, prosecutors uphold the rights of defendants and maintain the trust placed in the judicial process.
What do if you are charged with a crime:
If you have been charged with a crime, you are presumed innocent until proven guilty. This is a fundamental right. You remain innocent until prosecution can prove beyond reasonable doubt in court that you are guilty.
Andrew Proto and David Sachs are criminal defense attorneys in Westchester County. With 25 years of experience, they have represented clients from all walks of life. They are both former Westchester County Prosecutors and published authors in the areas of general criminal defense, drug crime defense, and DWI defense.
As part of your case evaluation, investigation, and strategy, Andrew and David always protect their clients against any prosecutorial misconduct and violations of due process.
If you or a loved one has been arrested call Andrew or David for a free initial consultation. Offices are located in White Plains and Cortlandt Manor, New York.