June 29, 2018 |

Was There Prosecutorial Misconduct in Your New York Criminal Case?

All criminal defendants in New York have a constitutional right to a fair trial. But a fair trial requires prosecutors who act fairly and in accordance with the law, applicable rules of procedure, and their ethical obligations. When that doesn’t happen, when prosecutors engage in legally and ethically improper conduct in their quest for a guilty verdict, it is a violation of a defendant’s constitutional rights, and might be the basis for overturning a conviction or the recovery of damages in a lawsuit for the violation of the defendant’s civil rights.

You may think that a prosecutor’s job is to win cases and convict criminals. But you are only half right. As the U.S. Supreme Court held, a prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done...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.” Berger v. United States, 295 U.S. 78, 88 (1935).

New York’s highest court has echoed the Supreme Court’s view of a prosecutor’s duty to justice, holding that:

"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process." People v. Santorelli, 95 NY2d 412, 420-21 (2000)

Examples of Prosecutorial Misconduct

Prosecutors can breach these duties and responsibilities in any number of ways before, during, and after a trial. Some common examples of New York prosecutorial misconduct include:

• Failing to disclose evidence favorable to the defendant
• Knowingly introducing false testimony or evidence
• Asserting or referring to facts not proven at trial
• Making references to inadmissible evidence
• Making improper inferences about the defendant’s exercise of their Fifth Amendment right not to testify at trial
• Making inflammatory statements to appeal to the passions of the jury
• Engaging in discrimination in jury selection based on race, sex, religion, or ethnicity

It is important to understand that not all mistakes or misconduct by prosecutors can be the basis to vacate a conviction or get a new trial. Only an error which prejudiced a defendant and played a role in a guilty verdict can support such relief. If ten witnesses, DNA evidence, fingerprints, and other evidence in a case supported a guilty verdict, it is unlikely that an act of prosecutorial misconduct will be seen as prejudicial.

As one New York appellate court put it: a court will only reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  That “substantial prejudice is measured by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached." People v. Jones, 134 AD3d 1588 (2015).

It is important to note that even if a prosecutor engages in egregious, prejudicial misconduct, the defendant’s attorney must object to the prosecutor’s actions when they are committed or discovered. Otherwise, any ability to use that misconduct to seek a new trial could be waived.

Work With Skilled Brooklyn Criminal Defense Attorneys

That is just one more reason why it is so important to have an experienced New York criminal defense attorney defend you if you’ve been charged with a crime. Please call (718) 852-6763 to arrange for your free, confidential initial consultation with one of Epstein & Conroy’s experienced Brooklyn criminal defense attorneys now.