By Joseph Fan
As an officer of the court, a prosecutor has a duty to uphold the highest degree of ethical behavior. Imagine, however, a district attorney who is up for reelection. Instead of following his enumerated boundaries, he puts his own interests above yours and tries to convict you of a crime you did not commit. Even worse, let’s say you serve a twenty-year prison sentence for that crime. Many times, when a prosecutor has acted improperly enough, a court may reverse a conviction. What, however, happens to the prosecutor?
When prosecutors exceed their authority and unjustly convict defendants, there are real-world consequences. If punishments for misconduct are too harsh, prosecutors may be inclined to pursue fewer cases, and wrongdoers may commit more crimes. Conversely, if punishments are too lenient, prosecutors might not respect the limitations of their power. Though prosecutors are held to high duties and standards, the current system does not work because there is no unified model formula for proper punishment for prosecutor misconduct.
Before we can begin to make important systemic changes, however, we must answer certain questions. When does prosecutorial misconduct occur? What mechanisms are currently in place to prevent prosecutorial misconduct from occurring? Why should, or should not, prosecutors be granted immunity when they have acted improperly? How can courts properly punish prosecutorial misconduct?
Prosecutorial misconduct is very apparent today, popularized by the exposure of prosecutor conduct in recent high-profile cases. There are many indicators of prosecutorial misconduct, including a defendant’s prior criminal record, exculpatory information, impeachment information of government witnesses, timely disclosure of evidence that is favorable to the defense, and memorialized and tangible statements made by witnesses. Examples of prosecutorial misconduct also include courtroom misconduct, the mishandling of physical evidence, improper dealings with witnesses, the use of false or misleading evidence, harassment of the defendant or the defendant’s counsel, and improper behavior during grand jury proceedings. Not only does prosecutorial misconduct affect wrongfully convicted defendants, but society also suffers harm in the form of economic costs, loss of public faith in both the court system and the legal profession, and the failure of justice.
Despite the prevalence of misconduct and the resulting social costs, there are few mechanisms in place for redress when a prosecutor acts inappropriately. Such mechanisms as do exist are far from adequate. Victims of prosecutorial misconduct can seek professional disciplinary action, file for reasonable attorney’s fees under the Hyde Amendment, or commence a § 1983 civil suit if the prosecutor was acting within an administrative or investigative function. Courts may file complaints with state bar associations for disciplinary hearings, which may result in the prosecutor’s suspension or a permanent ban from practicing law. If an attorney intentionally violates court orders, a federal judge can impose fines or imprisonment by holding the attorney in criminal contempt. A federal judge may even award damages or other relief to injured parties by holding the attorney in civil contempt.
Under the Hyde Amendment, the injured party has the burden of showing that the government’s acts were “vexatious, frivolous, or in bad faith.” A simple search on Westlaw shows that Hyde proceedings rarely favor the injured party. Similarly, successful § 1983 actions are rare. Disciplinary hearings are also unlikely to succeed.
Under 18 U.S.C. § 401, courts have the power to impose fines and dismiss a prosecutor from a case if the prosecutor’s acts are contemptuous. Under the same statute, courts also have an inherent power to disbar or suspend an attorney from practicing law for contempt of the court. Courts may also publicly censure a prosecutor for misconduct.
Prosecutorial misconduct can also lead to a mistrial, reversal, or jury instructions. In United States v. Chapman, the court declared a mistrial after it found that the prosecutor withheld exculpatory evidence, which, under Brady v. Maryland and Giglio v. United States, prosecutors are required to disclose. In fact, the Center for Public Integrity has found that, since 1970, prosecutorial misconduct was cited as a factor in dismissing charges at trial in at least 2,012 cases. In United States v. Lyons, the court found that the government’s Brady and Giglio violations warranted dismissal of counts because the misconduct greatly pervaded the case. In United States v. Hernandez, the Eighth Circuit found proper the District Court’s instructions to the jury to disregard improper remarks and not to consider statements of counsel as evidence in the case, alleviating possible prejudice.
In the current U.S. legal system, prosecutors are entitled to absolute immunity when they act in a quasi-judicial role. In Imbler v. Pachtman, for instance, the U.S. Supreme Court held that prosecutors have absolute immunity against § 1983 suits regarding their actions that are “intimately associated with the judicial phase of the criminal process.” Under absolute immunity, unless a prosecutor violates a court order, she cannot be prosecuted for misconduct. This is an important right because immunity from prosecution or civil suits will allow a prosecutor to make discretionary decisions fairly without fear of punishment for good faith mistakes. In general, a prosecutor is entitled to absolute immunity when acting within the scope of her prosecutorial duties because courts fear that consideration of potential liability might inhibit a prosecutor from performing her duties to her fullest potential. Courts justify absolute prosecutorial immunity because they believe civil liability risk may frustrate the criminal justice system by negatively affecting a prosecutor’s performance and decision-making, and waste time and resources defending trivial lawsuits.
In contrast to absolute immunity, qualified immunity gives government officials other than attorneys some flexibility in making reasonable but erroneous judgments on unclear legal practices. Under qualified immunity, government officials are not subject to damages liability for the performance of their discretionary functions when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald. Qualified immunity, however, does not protect “the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs. Prosecutors are only limited to qualified immunity when they are performing administrative or investigative functions, rather than quasi-judicial functions. For instance, in Buckley v. Fitzsimmons, an accused brought a § 1983 claim against state prosecutors who fabricated evidence and made false statements at a press conference regarding the rape and murder of a child. On certiorari, the Supreme Court decided that the prosecutors were not entitled to absolute immunity for the fabrication of evidence because the prosecutors were not acting as state attorneys, but instead as investigators with the same functions as detectives, so they were only entitled to the same qualified immunity as the detectives. The prosecutors were not entitled to absolute immunity for the press conference claim because the attorney was in the same position as other officials with qualified immunity who dealt with the press.
Prosecutors currently have absolute immunity as long as they can show they are performing prosecutorial functions, even if they act in bad faith. This gives prosecutors a lot of power, and with such power comes the potential for abuse. There is a difference between advocating avidly and performing misconduct, which ought to be better acknowledged.
Despite this, in Burns v. Reed, the Court held that qualified immunity is “more protective of officials than it was at the time that Imbler was decided.” The issue in Burns concerned which immunity ought to be provided to the essential function of prosecutors providing legal advice to police officers. The Court reasoned that because the subjective common-law standard was replaced with the objective standard expressed in Harlow, qualified immunity adequately protects “all but the plainly incompetent or those who knowingly violate the law,” and “where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.” Though it is true that downgrading absolute immunity to qualified immunity for prosecutors giving legal advice to police officers may make prosecutors reluctant to give advice, it also has the effect of forcing prosecutors to put more thought into their advice. If prosecutors were entitled to absolute immunity for giving advice and police officers were entitled to qualified immunity for following the advice, the effect would be that “the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.” Burns.
Though a shift from absolute immunity to qualified immunity for prosecutorial misconduct would be a great start, this is not enough. As it stands, prosecutors are rarely punished for their misconduct. Prosecutors would likely think twice before “winning at all costs” if they knew they might be prosecuted for their misconduct; this would be an ideal outcome. In order to accomplish this, a system to punish prosecutorial misconduct is necessary, and this system should balance all the necessary factors to ensure fairness and justice.
The implications of imposing such a system might include heavier dockets for the state and federal courts and correspondingly increased financial and resource burdens. However, if it is true that “it is far worse to convict an innocent man than to let a guilty man go free,” as Justice Harlan said, then this is a negligible price to pay to ensure justice for all.