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Prosecutorial Misconduct Cases And Examples

June 4, 2020 By Samuel Partida, Jr.

What is prosecutorial misconduct?

If you ask most criminal defendants they’d tell you if you want to see an an example of prosecutorial misconduct all you have to do is look at his case.

The law, in fact, gives prosecutors wide latitude to operate and it takes pretty obvious and egregious conduct before a court will finds that prosecutorial misconduct has occurred.

Prosecutorial Misconduct

A prejudicial denial of due process can occur where an indictment is procured through prosecutorial misconduct. Legore, 2013 IL App (2d) 111038, ¶ 23. “The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.” Oliver, 368 Ill. App. 3d at 694 (quoting People v. DiVincenzo, 183 Ill.2d 239, 257 (1998)).

Therefore, prosecutorial misconduct is a general description of wrong doing by a prosecutorial, but a defendant has to point to some prejudice before he can ask for a dismissal or a suppression of evidence.

To warrant dismissal of the indictment, the denial of due process must be unequivocally clear, and the prejudice must be actual and substantial. Oliver, 368 Ill. App. 3d at 694-95.

Prosecutorial misconduct resulting in a due process violation is actually and substantially prejudicial only if the grand jury would not have otherwise indicted the defendant. Legore, 2013 IL App (2d) 111038, ¶ 23. 

In a grand jury room prejudice is shown if the evidence was so weak that the misconduct induced the grand jury to indict. Oliver, 368 Ill. App. 3d at 697-98.

Prosecutorial Misconduct Cases

The best way to get a handle on what a court will consider prejudicial prosecutorial misconduct is to consider actual Illinois prosecutorial misconduct cases.

Consider the following prosecutorial misconduct examples…

► People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07) (Reversible Error For The State To Spring A Doctored Image Before The Jury)

The prosecutorial in this case showed the jury a doctored photo of the defendant showing his face covered over the mouth. The photo was never entered into evidence, and the court said this amounted to a denial of fundamental fairness.

► People v. Haynes, 2015 IL App (3d) 130091 (January). Episode 047 (Duration 12:44) (Possible Prosecutorial Misconduct: Did The Prosecutor Tell A Witness To Lie?)

Telling a witness to lie at trial is no doubt one of the most serious prosecutorial examples anyone can up with. The appellate court wasn’t sure if that happened, but it was willing to keep the case opened to find out.

► People v. Weinke, 2016 IL App (1st) 141196 (March). Episode 148 (Duration 10:43) (Prosecutor Gets Busted Stretching The Truth)

The ASA exaggerated the severity of victim’s condition and misled the court as to the source and timing of her information in order to pressure the court into granting a quickie deposition. The court said defense counsel was left in an extraordinary disadvantage—granting the deposition without proof was reversible error.

► People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March). Episode 616 (Duration 15:29) (Prosecutors Questions Could Have Been Presented More Clearly And Completely In The Grand Jury Room)

In this case the prosecutor got a little sloppy with the questions in the grand jury room. The officer answered “yes” to several questions that allegedly conveyed to the grand jury that defendant “confessed” and flashed gang signs at the victim when that didn’t happen.

► People v. Boston, 2016 IL 118661 (February) Episode 144 (Duration 6:29) (An Example of Sloppy Grand Jury Work)

The prosecutor failed to follow proper procedure in the grand jury room. There was no affidavit to the grand jury, failure to swear in the officers as agents of the grand jury, failure to return the subpoena to the grand jury, and the records were not shown to the grand jury. However, there was no prejudice to the defendant.

► People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59) (Perogatory And Pejorative Name Calling During An Opening Statement Is Going To Draw A Reversal)

The ASA referred to the defendant as cold-blooded criminal and the reviewing court found this to be improper and prejudicial. The court said the comment did not belong in an opening statement under any circumstances, conjured a powerful image calculated to invoke an emotional response.

► People v. Mpulamasaka, 2016 IL App (2d) 130703 (January). Episode 127 (Duration 15:34) (Prosecution Walks A Very Fine Line In Their Closing Argument)

The prosecutor in this case actually said, “it’s okay to walk the line as long as you don’t cross that line, as long as you’re doing everything ethically and in good faith.” The appellate court found he trampled over that line.

► People v. Williams, 2015 IL App (1st) 122745 (March). Episode 067 (Duration 16:28) (Improper Witness Vouching: Was This Prosecutor Vouching For His Witness?)

This conviction was reversed when the court said that the prosecutor told the jury that he would not put an untruthful witness on the stand. “That goes even further than the prosecutor’s opinion. The prosecutor explicitly told the jury that [the flipper’s] credibility had already been assessed before he took the stand. The prosecutor urged the jury to believe [their witness] over defendant because of the government’s verification of [their witness’s] version of events.

► People v. Thompson, 2016 IL App (1st) 133648 (March). Episode 164 (Duration 5:47) (Error For The Prosecution To Ask The Jury If There Heart Is Not Broken For That Women)

No reversal but the court said this statement was improper: “Is there any heart in this courtroom that wasn’t breaking for that woman as she was on the stand? Lost her son. Saw her nephew being shot. Is there anyone’s heart that does not break for that woman? Other than him maybe. She has been through hell.”

See more closing argument examples.

Filed Under: Prosecutorial Misconduct

Why It Can’t Be Too Easy To Challenge A Grand Jury Indictment

May 13, 2019 By Samuel Partida, Jr.

People v. Nolan, 2019 IL App (2d) 180354 (April). Episode 627 (Duration 9:29)

Trial judge grants defendant’s motion to dismiss the indictment in part because the officer did not testify in the hearing.

[Read more…]

Filed Under: Dismissal, Grand Jury, Prosecutorial Misconduct

Reversible Error For The State To Spring A Doctored Image Before The Jury

June 25, 2018 By Samuel Partida, Jr.

People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07)

Here’s the photo… [Read more…]

Filed Under: Eyewitness, Prosecutorial Misconduct

When Prosecution Tries To Get Into Police Steps In Their Investigation That’s The First Hint Something Improper Is Happening

April 4, 2017 By Samuel Partida, Jr.

People v. Ochoa, 2017 IL App (1st) 140204 (February). Episode 315 (Duration 29:55)

Defendant’s murder conviction is reversed a second time for the same reason it was reversed the first time (Cameron Hearing Problem). [Read more…]

Filed Under: Accomplice Testimony, Hearsay, Prosecutorial Misconduct

Perogatory And Pejorative Name Calling During An Opening Statement Is Going To Draw A Reversal

November 15, 2016 By Samuel Partida, Jr.

People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59)

Big problems with this prosecutor’s opening statement. [Read more…]

Filed Under: Opening Statement, Prosecutorial Misconduct

Prosecutors Take Some Moves Out of the “Saul Goodman” Playbook: 4 Examples of Prosecutorial Misconduct and What They Reveal

May 2, 2016 By Samuel Partida, Jr.

Recent cases of prosecutorial misconduct in Illinois courtrooms give us a chance to dig a little deeper. What exactly is going on? [Read more…]

Filed Under: Prosecutorial Misconduct

Prosecutor Gets Busted Stretching The Truth

March 14, 2016 By Samuel Partida, Jr.

People v. Weinke, 2016 IL App (1st) 141196 (March). Episode 148 (Duration 10:43)

“While we have no desire to impugn the ASA’s reputation, given the power and autonomy that prosecutors have over a criminal defendant’s fate, we cannot ignore what happened.” [Read more…]

Filed Under: Prosecutorial Misconduct

Prosecution Walks A Very Fine Line In Their Closing Argument

January 12, 2016 By Samuel Partida, Jr.

People v. Mpulamasaka, 2016 IL App (2d) 130703 (January). Episode 127 (Duration 15:34).

Prosecution walks the line to win a conviction. Appellate court quickly reverses.
[Read more…]

Filed Under: Closing Argument, Prosecutorial Misconduct, Sex Case

A Back Door Way For Prosecutors To Get Into Clearly Inadmissible Evidence: I Think They All Do This

January 27, 2015 By Samuel Partida, Jr.

People v. Boling, 2014 IL App (4th) 120634 (March); citing People v. Cameron, 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989). Episode 057 (Duration 19:48)

What is the most common prosecutorial misconduct example or most common prosecutorial error? [Read more…]

Filed Under: Evidence, Prosecutorial Misconduct

Possible Prosecutorial Misconduct: Did The Prosecutor Tell A Witness To Lie?

January 27, 2015 By Samuel Partida, Jr.

See People v. Haynes, 2015 IL App (3d) 130091 (January). Episode 047 (Duration 12:44)

Serious possible prosecutorial misconduct but a definite discovery violation is being litigated in the Third District. [Read more…]

Filed Under: Ineffective Assistance, Professional Responsibility, Prosecutorial Misconduct

Top 10 Lawyer Mistakes of 2014 | An Illinois Case Law Review 2014

January 20, 2015 By Samuel Partida, Jr.

I created a mini Illinois case law review 2014. As you know, I have been reading, summarizing, and reporting on Illinois criminal case law for the entire year in 2014. [Read more…]

Filed Under: Case List, Ineffective Assistance, Prosecutorial Misconduct

Improper Witness Vouching: Was This Prosecutor Vouching For His Witness?

January 16, 2015 By Samuel Partida, Jr.

See People v. Williams, 2015 IL App (1st) 122745 (March). Episode 067 (Duration 16:28)

Was there improper witness vouching? This was the question after the prosecutor told the jury he “checked out” his witness’s story. [Read more…]

Filed Under: Closing Argument, Prosecutorial Misconduct

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