Justice Sutherland’s oft-quoted observation in Berger v. United States that “while [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones” is but one example of the Supreme Court espousing the view that the unique role of the prosecutor requires a degree of detachment that is different from that expected from a typical litigator.[1] The prosecutor is unique, Justice Sutherland explains further, because she has an obligation not simply to “win” a case, but to see “that justice shall be done.”[2] This post surveys the structural failings that undermine the powerful language in Berger to argue that, as currently situated, our system does little to ensure that a prosecutor weighing whether a blow is so hard as to turn foul has any incentive to err on the side of fairness.
Prosecutorial misconduct can be a divisive subject among legal scholars – one side suggests that misconduct is pervasive while the other side argues that the notion of widespread prosecutorial misconduct is an overwrought myth. [3] Both sides, however, cite the same statistics showing how infrequently prosecutors are sanctioned to argue either that prosecutors often break the rules because they know they will not be punished, or, conversely, that prosecutors are only so rarely punished precisely because they so rarely break the rules.[4]
These dueling statistical interpretations should be dispensed with entirely. The issue is not whether prosecutors usually follow the rules, but whether the rules create an incentive structure that ensures justice will prevail. Regardless of whether prosecutors do indeed follow the rules almost all of the time, the high barriers to proving prosecutorial wrongdoing, the lack of professional sanctions faced by prosecutors who break the rules even when misconduct is found, and the lack of civil remedies against prosecutors for those who were wrongfully accused or convicted create a set of system-wide incentives for prosecutors to err towards rule-breaking rather than rule-following.[5] Thus, the statistical evidence in this area is largely unhelpful – our adversarial system cannot and should not expect defendants and their attorneys to simply rely upon the good faith of the other side in the absence of any meaningful deterrent for would-be rule-breakers.
There are manifold challenges to uncovering prosecutorial misconduct that may undermine the fairness of a criminal trial. Most obviously, the people most likely to be aware of any misconduct are those working in the prosecutor’s office, who, therefore, have personal and professional reasons to at best ignore and at worst abet any wrongdoing.[6] Thus, when prosecutorial misconduct is revealed, it is usually long after trial through an extensive and time-consuming appeal process.[7] There is something deeply perverse about a system that may leave an innocent defendant in prison for years as her various appeals play out before correcting the governmental wrongdoing that put her there. Additionally, because the vast majority of criminal cases are decided by plea agreements rather than at trial, there is often no way for a defendant to even know whether prosecutorial misconduct had a role in coercing the agreement.[8] Since it is so difficult to prove misconduct in the first place, defense attorneys who suspect wrongdoing may very well reason that their clients are better served by letting such issues lie.[9] Further, defense attorneys may have other incentives – like a general need for comity with the prosecution given their broad leeway in creating plea agreements and making sentencing recommendations – that lead defense attorneys to avoid raising issues surrounding misconduct altogether.[10] This structure dramatically undermines the adversarial nature of criminal proceedings and allows the unscrupulous prosecutor to obtain a tactical advantage that a defense attorney is unlikely to ever discover or address.
Even when a defendant discovers misconduct, raises the issue, and meets the heavy burden of demonstrating that the misconduct actually occurred, she still must show that it substantially prejudiced her right to a fair trial.[11] The issue here is not so much the harmless error rule itself (arguments about the rule’s value are beyond the scope of this piece), but the fact that the unscrupulous prosecutor may face no professional or personal consequences at all, simply because of the nature of the case in which she broke the rules.[12] Further, wrongfully accused or convicted defendants have virtually no civil remedies against the prosecutors who improperly obtained their convictions.[13] Indeed, the harshest “punishment” prosecutors face for misconduct that does not reach the high bar of substantially prejudicing the outcome, is having their behavior described in “opprobrious terms” by judges considering their actions.[14] Because only the most litigated, contentious, and drawn-out cases advance to a stage where prosecutorial misconduct may become relevant, it is also often only those cases involving the most heinous accusations – and by extension the harshest penalties – where the issue even arises.[15] Thus, when a prosecutor in a “run-of-the-mill” case weighs whether the blow she intends to strike is hard or foul, she has little to lose should she choose the latter.
These structural failings force criminal defendants to trust the good faith of their opponents in a way that an adversarial system cannot accept. Professional associations, state legislatures, and the courts themselves should begin remedying these issues by formulating a system of incentives that ensures criminal defendants that prosecutors are held to the high standard expected of them.
[1] Berger v. United States, 295 U.S. 78, 88 (1935); see, e.g., Turner v. United States, 137 S. Ct. 1885, 1893 (2017); Connick v. Thompson, 563 U.S. 51, 71 (2011); Strickler v. Greene, 527 U.S. 263, 281 (1999).
[2] See Berger, 295 U.S. at 88.
[3] See, e.g., Timothy C. Harker, Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct, 85 TENN. L. REV. 847, 852–66 (2018); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L. J. 203, 210 (2011).
[4] See Harker, supra note 3 at 853-54; Keenan et al., supra note 3 at 211-12.
[5] See Keenan et al., supra note 3 at 209-12.
[6] See id. at 209.
[7] See id. at 210.
[8] See id.
[9] See id. at 210-11.
[10] See id. at 210-12.
[11] See id. at 212.
[12] See Walter W. Steele, Jr., Unethical Prosecutors & Inadequate Discipline, 38 SW. L.J. 965, 977 (1984).
[13] See, e.g., Connick v. Thompson, 563 U.S. 51, 71-72 (2011); Imbler v. Pachtman, 424 U.S. 409, 422–24 (1976); Yaselli v. Goff, 12 F.2d 396, 406 (2d Cir. 1926), aff’d per curiam, 275 U.S. 503 (1927).
[14] See Steele, supra note 12 at 977.
[15] See Keenan et. al., supra note 3 at 212.