Prosecutorial Misconduct: The Rules, The Issues & The Remedies

Most Prosecutors are very professional, approachable, and direct in their dealings. It’s rare to encounter ones who aren’t. For the rare exception, however, this guide summarizes how to handle the Prosecutor who is managing a client’s case unprofessionally, unlawfully and/or prejudicially.

THE RULES: WHAT STANDARDS, LAWS AND COURT RULES CONTROL HOW PROSECUTORS MANAGE THEIR CASES?

Prosecutorial misconduct is conduct which violates court rules or ethical standards of law practice. Washington’s Rules of Professional Conduct (RPC’s), court rules and case law govern how Prosecutors manage their cases. For example, under RPC 3.4, a lawyer shall not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, or assert personal knowledge of facts or state a personal opinion as to the justness of a cause, the credibility of a witness, or the guilt or innocence of an accused. Additionally, RPC 3.1 states that a lawyer shall not bring a proceeding unless there is a basis for doing that is not frivolous (please see links below).

THE ISSUES: HOW DO PROSECUTORS VIOLATE A DEFENDANT’S RIGHTS?

Examples of prosecutorial misconduct may include the following: (1) Courtroom misconduct (making improper remarks or improperly introducing evidence designed to prejudice the jury; violating rules regarding selection of the jury; or making improper closing arguments); (2) hiding, destroying or tampering with evidence, case files or court records; (3) failing to disclose evidence that might tend to exonerate the defendant; (4) threatening, badgering or tampering with witnesses; (5) presenting false or misleading evidence; (6) selective or vindictive prosecution; (7) denial of a defendant’s speedy trial rights; and (8) using unreliable and untruthful witnesses and snitches.

THE REMEDIES: WHAT CAN BE DONE TO PEACEFULLY PREVENT PROSECUTORIAL MISCONDUCT AND PROTECT A DEFENDANT’S RIGHTS?

The first and most effective action a defense attorney should do is simply contact the Prosecutor and attempt to resolve whatever conflict exists. A friendly chat can clear the waters when simple misunderstandings result in bruised egos. It is very important to maintain cordial and friendly relationships with the Prosecution. However, if peacemaking efforts unfortunately fail, a competent defense attorney should focus on making sure the Prosecutor is following their obligations to provide discovery under RPC 4.7. Entering an Agreed Omnibus Order and/or arguing a motion to compel discovery while the case is pending are two non-threatening ways to facilitate cooperation and address any discovery issues (please read my Legal Guide regarding Motions to Compel). Defense Counsel should seek more serious measures if there’s concern that the Prosecutor is purposefully mismanaging a client’s case (please see below). In the end, effective pretrial motion practice makes a solid record for appeal. It ensures the Prosecutor is doing their job correctly; is not prejudicing the defendant is and not hiding valuable information from Defense Counsel.

MOTION TO DISMISS UNDER RPC 8.3 AND REQUEST FOR SANCTIONS UNDER CR 11.

Sometimes, more extreme measures are necessary when peacekeeping efforts fail. For example, under RPC 8.3, a defense attorney can seek dismissal of a case if there’s enough evidence of prosecutorial misconduct. Basically, a lawyer who knows that another lawyer has committed a violation of the RPC’s that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority; who is typically a judge. RPC 8.3 also authorizes a court to dismiss any criminal prosecution due to “arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” Finally, Court Rule 11 (CR 11) allows the judge to impose sanctions on attorneys who file frivolous pleadings and/or criminal charges (another aspect of prosecutorial misconduct). The judge reviews allegations of prosecutorial misconduct under an “abuse of discretion” standard. Ultimately, the defendant bears the burden of showing that the Prosecutors comments and/or management of the case was improper and prejudicial to the defendant. Again, instances of prosecutorial misconduct are rare. Most Prosecutors conduct their duties with integrity and candor. Nevertheless, immediately inform your defense counsel if you believe the Prosecutor is unfairly prosecuting you. Your liberty and freedom depend on it.

Additional resources provided by attorney Alexander Ransom: