Encyclopedia of Psychology and Law

with, or fabricating evidence; or making material mis-

statements regarding law or fact. The legal and psy-

chological importance of examining prosecutorial

misconduct is its potential to induce a jury to consider

improper factors during the decision-making process.

Legal scholars contend that prosecutorial miscon-

duct often occurs because of the prosecutor’s quest to

secure a conviction. In doing so, prosecutors compro-

mise impartiality by using improper methods to estab-

lish guilt—for example, inappropriately inferring

guilt from a defendant’s silence. Although higher

courts consistently express disapproval of improper

prosecutor conduct, they frequently affirm the convic-

tion, concluding that some prosecutorial errors are

harmless. For an error to be considered harmless,

reviewing courts need to establish that the outcome of

the trial was not significantly affected by the error.

Forms of Prosecutorial Misconduct

The most common form of prosecutorial misconduct

occurs in argument to the jury; however, it can also

take place in evidence hearings, opening statements,

and cross-examination. For example, it is misconduct

to comment on a defendant’s failure to testify. Similarly,

it is improper for the prosecutor to address the credi-

bility of the testimony of codefendants or co-conspirators.

Commenting on a defendant’s silence, or inferring

questionable relationships among defendants, improp-

erly suggests guilt and encourages a jury to find the

defendant guilty. It is also considered misconduct for

the prosecutor to question the integrity of the defense

counsel. This includes unconfirmed claims that

defense counsel fabricated evidence, courtroom dis-

plays of dissatisfaction with defense witnesses, or

interruptions of defense objections. In general, any

unsupported, damaging comments on the part of the

prosecutor that challenge a defendant’s constitutional

rights can be considered misconduct.

A review of appellate decisions also finds prosecu-

tors cited for misconduct regarding issues related to

evidence. Prosecutors must not introduce or attempt to

introduce inadmissible evidence and, in the same

vein, must disclose evidence favorable to the defen-

dant. It is misconduct for prosecutors to use false or

misleading evidence, misrepresent evidence to the

jury, or destroy or tamper with evidence. In addition,

it is improper for the prosecutor to make material mis-

statements of law or fact. Opening statements must be

limited to offering admissible evidence, and closing

arguments must be limited to evidence presented.

Repeated instances of uncorrected misstatements

could result in ordering a new trial.

Prosecutorial Misconduct

in Capital Trials

Prosecutorial misconduct has been identified as

a leading cause of unfairness during the sentencing

phase of capital trials. Courts have expressly con-

demned this type of misconduct, which occurs in clos-

ing arguments. Defense attorneys contend that

improper prosecutor remarks during the closing argu-

ment have the potential to inflame the sentencing jury

if the argument introduces arbitrary factors to the

jury’s recommendation of the death penalty. Empirical

evidence indicates that individuals exposed to improper

statements made by the prosecutor in the closing argu-

ment recommended the death penalty significantly

more often than those not exposed to the statements.

These results support the need to address regulating

the penalty phase to minimize the likelihood that the

jury will sentence the defendant to death for improper

reasons.

Although the Supreme Court has not yet estab-

lished specific guidelines determining the parameters

of permissible prosecutorial argument, lower courts

have provided general principles for defining

improper penalty-phase arguments. In general, prose-

cutors are prohibited from stating their personal belief

in the death penalty or from referring to their discre-

tionary decision to seek the death penalty. It is mis-

conduct to mislead the jury about its responsibility by

implying that imposing the death penalty would deter

others or protect the community. It is also considered

improper to argue support for the death penalty in a

religious context. Some state courts have ruled it

improper for prosecutors to discuss the impact of the

crime on the victim’s family or to argue that a victim’s

family deserves a particular verdict. Overall, rulings

on improper prosecutor arguments appear to be based

on distinguishing between those that merely commu-

nicate misinformation and those that introduce

extralegal factors that are likely to influence a jury’s

sentencing recommendation.

Remedies for

Prosecutorial Misconduct

There is a considerable body of legal literature

addressing remedies, or cures, for prosecutorial mis-

conduct. Legal professionals concur that prosecutorial

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