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

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.