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A prosecutor must see that justice is done.
In Berger v. United States (1935) 295 U.S. 78, the United States Supreme Court held that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Id. at 88 (emphasis added).
Justice Sutherland’s words have been quoted and reiterated by courts across the nation since the Berger decision came down in 1935. But I am concerned that sometimes, the ego-based mentality of saving face, of not losing a trial, and of looking good to peers, has caused some prosecutors to forget this sacred role. It is the protection of the People of the State California that must be the focus, the aim, the goal. A prosecutor must never lose sight of the importance of guarding against convicting the innocent, just as they are called to convict the guilty and seek just punishment. So why do we have so much case law pertaining to prosecutorial misconduct? The answer is because prosecutors are humans, and humans are flawed. Of course a prosecutor does not go to law school and seek a public service job so they can convict the innocent and railroad the accused. I’m sure they chose their profession because they have a passion for justice and public safety… Maybe the explanation is a toxic culture. Or maybe a lack of training? Either way, as criminal defense lawyers, we must be quick to recognize prosecutorial misconduct, we must know how to argue for a remedy, and we must always make a record for appeal.
Prosecutors have enormous power, and their arguments are given great weight. They are, after all, The Government. Taking on such a job is no joke. Defending against misconduct is equally as serious. And this blog post is not only a reminder for the criminal defense attorney who needs to protect their client from prosecutorial misconduct, but also for the prosecutor. I have encountered prosecutorial misconduct in my career. I caught it, argued against it, and won. But the prosecutor who caused one of the mistrials and the ultimate dismissal of my client’s felony case, was not a bad person. In fact, he was a friend of mine. He made the mistake because he did not know the legal limits, and he was always undoubtedly under the pressure to win. Not a good combination.
First of all, prosecutorial misconduct is somewhat of a misnomer. All that’s required is error. That means the error or mistake does not have to be intentional. See People v. Hill (1998) 17 Cal.4th 800, 822. The remedy may be different if intentional (and there are different standards under the California Constitution versus the federal), but all that is required in order to trigger a criminal defense attorney’s obligation to object is error.
One common error I’ve seen is a prosecutor who does not follow court rulings. For example, the court grants a defense motion in limine that the prosecution and their witnesses are not to mention a certain fact (a prior conviction, perhaps, or maybe in a DUI case a defendant’s refusal to take a preliminary alcohol screening device test). Despite the order, the prosecutor elicits the testimony through a witness. See People v. Glass (1975) 44 Cal.App.3d 772 [court referred to prosecutor’s failure to abide by court rulings as “inexcusable.”]. Prosecutors are required to refrain from asking about the excluded fact, and have the obligation to communicate the court’s orders to their witnesses.
Other examples of prosecutorial misconduct include disparaging defense counsel or their witnesses, claiming that defense counsel knows the evidence shows their client is guilty, and one that seems to be recurring in my career – trivializing reasonable doubt. See People v. Bain (1971) 5 Cal.3d 839; People v. Thompson (1988) 45 Cal.3d 86; People v. McGreen (1980) 107 Cal.App.3d 504; see also People v. Centeno (2014) 60 Cal.4th 659. These things do happen. Prosecutors sometimes let their emotions interfere. They feel the defendant committed a crime, victimized someone, and now get angry because the defendant is claiming innocence. Like any other lawyer, prosecutors get invested in their cases. They also connect with victims and their families, and get attached to the outcome. The delicate balance they must strike is keeping their emotions in check, while remaining passionate enough to convince a jury. They cannot step over that line, because our Constitution provides defendants in all criminal cases the right to a fair trial. A “fair trial” is already elusive enough, without adding shady tricks or mistakes into the mix.
Prosecutorial misconduct can result in a mistrial, or a reversal after conviction. But in order to make a sufficient record for appeal, defense counsel must first object. The objection must be timely. This seems pretty straightforward, but defense attorneys don’t always want to object (thereby trumpeting the fact they didn’t want to get out, hence why they ran the motion to exclude it in the beginning!). But if there’s no objection, and the client is convicted, you can forget about that argument on appeal, and you might end up getting served with a petition for writ of habeas corpus alleging ineffective assistance of counsel – also not desirable.
The timely objection must be specific, and should also be federalized to include the US Constitution. That means state the grounds (don’t just say “objection”) and the federal constitutional rights the error violated. This is important so the trial court can pass on an issue of federal constitutional law so those remedies are exhausted in state court. [Here’s an example of an objection: “Objection, prosecutorial misconduct (or error) in violation of my client’s right to due process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution.”]
The next step is for defense counsel to request a curative jury instruction – essentially an admonition that the jury disregard the prosecutor’s remarks (or the excluded evidence, etc.). The final step is to move for a mistrial. Although California case law authority states that a curative instruction is only required where the error could be cured, the better practice in my opinion is do both and then move for a mistrial. If the error cannot be cured, and your client cannot get a fair trial, then a mistrial is in order. Once you complete these three steps, the issue of prosecutorial misconduct is preserved for appeal (should you lose your motion for a mistrial and your client get convicted). And depending on whether or not the error was prejudicial, harmless, or constituted a miscarriage of justice, reversal of any conviction where such error has occurred may be forthcoming.
Years ago, I defended a man in a three strikes trial (back when they could strike someone out for a little bit of drugs). I had a witness transported from prison who testified that the drugs actually belonged to him, and not to my client. We were winning. The prosecutor then began questioning the witness about various telephone conversations he had with my client wherein my client supposedly stated something to the effect of, “I will take care of you, I’ll put money on your books.” I immediately objected. The prosecutor had never turned those statements over to me before trial! Prosecutors have the statutory obligation to do so. This prosecutor misunderstood the law (again it was not intentional). The court ordered a mistrial because the court determined the bell could not be “un-rung.” The result for the client was good. He did not get life in prison for the small amount of drugs found in his possession. The reason was that after his mistrial, the law was changed to require that the current felony be a strike offense (and not just a felony, with some exceptions) in order to get 25 to life in prison. The prosecutor’s not knowing the law cost the county a whole lot of money in the end (I was also court-appointed at the time)…and I have to admit, I took it personally. I shouldn’t have, but it turns out I’m human too.
Prosecutorial misconduct is costly in many ways. It can result in innocent lives being convicted, unjust punishment, expensive appeals and possibly a whole new trial upon reversal. Due to new laws in California, a prosecutor here can now be criminally penalized for misconduct, such as for deliberately withholding exculpatory evidence. The prosecutor must always be on guard. The prosecutor must never forget their role. They must never lose sight of the end goal of justice, whatever that may look like in the case.
And defense attorneys must never be silent, even when they only suspect prosecutorial error may be occurring. When in doubt, object.