Prosecutorial Misconduct: Discretion, Decisions, and Wrongful Convictions

By: Professor and Exoneree Jarrett Adams

United States law gives state and federal prosecutors complete and nearly, unreviewable authority to decide whether or not to bring criminal charges and what charges to bring. This authority puts American prosecutors amongst the most powerful of public officials. However, this power has also been found to be a leading factor in cases of wrongful convictions.

Although countless instances of misconduct never come to light, an Innocence Project review found that 65 of the first 255 DNA exonerees raised allegations of prosecutorial misconduct in their appeals or in civil suits filed after exoneration. In about half of those cases, courts found either error or misconduct by prosecutors. However, judges only found “harmful error” – enough to overturn a conviction – in 12 cases.

Often, society questions the use of discretion in cases involving race, public figures, and youth. This paper will examine the following: 1) the nature and extent of prosecutorial misconduct as a component of wrongful convictions; 2) the leading Supreme Court prosecutorial immunity decisions; and 3) the impact of these decisions on the pervasive problem of prosecutorial misconduct.


A prosecutor is the most powerful official in the criminal justice system. Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. In the current system, plea-bargaining is the norm, with the majority of cases never going to trial before a judge or jury. This means that a prosecutor’s decision about what charges to bring and what plea to accept amounts to a final adjudication in most criminal cases.  In the United States today, the prosecutor has therefore become not only a law enforcer, but also the only adjudicator in the overwhelming majority of cases. Prosecutorial discretion is therefore the central issue in criminal justice today at all levels of government.

Ethical codes and case law provide some mandatory norms for prosecutors. The exercise of discretion is also an important component of the prosecutor’s job. Discretion is employed, for example, in the investigation of cases, in charging decisions, plea-bargaining, and in sentencing. Many commentators have concluded that the role of discretion in prosecution has expanded in recent years, as have the prosecutor’s powers in the criminal justice system. Long before this expansion, however, the subject of discretion attracted attention when misconduct was found to be evident in cases of wrongful convictions.

Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution.  In Berger v. United States, Justice Sutherland explained that prosecutorial misconduct meant overstepping the bounds of the propriety and fairness, which should characterize the conduct of such an officer in the prosecution of a criminal offense.

Prosecutors are entrusted with determining who will be held accountable when a crime occurs.  They hold a great deal of power.  They work with the police as they gather evidence and build a case against a suspect and then they take that case to court and are charged with convincing a jury of the guilt of the suspect.  First and foremost, it is the prosecutor’s job to seek justice and present the judge and jury with facts and legal arguments that result in the conviction of a guilty defendant.

The criminal justice system is adversarial. Prosecutors and defense attorneys are supposed to battle against each other within the framework of the law. The competitiveness makes it very difficult to hand the opponent the tools that could very well destroy your case.  Nevertheless, it is the prosecutor’s duty to do so. However, this duty is often times disregarded because of prosecutorial immunity.


In 1976, The Supreme Court first addressed the issue of prosecutorial immunity under 42 U.S.C.A. § 1983 in the landmark case of Imbler v. Pachtman, The defendant, Imbler, was convicted of murder and sentenced to death in California in 1962, on the basis of the testimony of several identification witnesses. Subsequently, the trial prosecutor, Richard Pachtman, wrote to the Governor describing evidence he claimed he and a prison investigator had discovered after trial. This evidence consisted of newly discovered corroborating witnesses for Imbler’s alibi, as well as new revelations about a key witness’ background, which established that he was less trustworthy than he had represented originally to Pachtman and had repeated in his testimony. Pachtman stated that he wrote from a belief that “a prosecuting attorney has a duty to be fair and see that all true facts, whether helpful to the case or not, should be presented.” 424 U.S. at 413

The California Supreme Court found that contrary to Imbler’s assertions, Pachtman had neither knowingly used false evidence nor suppressed material evidence, and, despite the subsequent recantation of the witness, denied Imbler’s habeas corpus petition. However, in 1969, the Federal District Court for the Central District of California, finding “culpable use” of false testimony by the prosecution, granted Imbler’s federal habeas corpus petition. 409 U.S. at 414-415. After an unsuccessful appeal, the State chose not to retry Imbler and he was released, after spending ten years behind bars.

It would be another 16 years after its Buckley decision before the Supreme Court would decide another major prosecutorial immunity case that would have a substantial impact on wrongfully convicted § 1983 plaintiffs. During that intervening period, the Court expressly restricted the right to bring such wrongful conviction claims to circumstances where the prisoner had been officially exonerated of the crime (see Heck v. Humphrey, 512 U.S. 477 (1994)), restricted the scope of the underlying Constitutional rights involved (see, e.g., Albright v. Oliver, 510 U.S. 266 (1994) and Wallace v. Kato, 510 U.S. 1215 (2007)), while further strengthening the qualified immunity defense (see, e.g., Saucier v. Katz, 533 U.S. 194 (2001)). Additionally, with regard to prosecutorial immunity, the Court held that a prosecutor was immune both for her in-court and out-of court actions in obtaining a search warrant, except for the act of certifying the factual summary that was presented to the Court in order to obtain issuance of the warrant. Kalina v. Fletcher, 522 U.S. 118 (1997).

Wrongful Convictions

In their analysis of the causes of wrongful convictions in cases where the conviction was overturned based on new DNA evidence, researchers found that prosecutorial misconduct was a factor in from 36% to 42% of the convictions.

For example, in 1987, in Texas, a prosecutor was faced with this dilemma.  Michael Morton was convicted of murdering his wife based on circumstantial evidence.  Morton’s defense attorney was never told about, or given access to, the police report in which Morton’s three-year-old son had told police that his “daddy had not killed his mommy.”  After serving 25 years for murdering his wife, Morton was exonerated after attorneys were finally given access to the police report and DNA testing of a bloody bandana found at the scene of the murder that matched a man who was serving a sentence for the murder of another woman.


In short, prosecutorial misconduct is alarmingly common, and there is no corrective mechanism, no accountability, no effective deterrent, and—because of prosecutorial immunities—often no civil remedy. Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities. As one commentator observed, the arguments supporting absolute prosecutorial immunity “offer a wry blend of fairy tale and horror story.””


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