Prosecutorial misconduct is conduct by a prosecutor that violates a duty or makes a criminal proceeding unfair. It can involve a failure to disclose information that tends to negate guilt, a charge the prosecutor knows lacks probable cause, or an improper argument to the jury. Those concerns arise under different rules. The act, the point in the case when it happened, the court record and any effect on the trial determine what counsel can ask the court to do. California’s professional rule 3.8 describes duties of a prosecutor; People v. Hill explains the separate trial-misconduct standards.
What conduct is at issue?
| What you have noticed | What counsel needs to check |
|---|---|
| A charge or disclosure problem before trial | Compare the actual charge, disclosure requests and orders, and what information the prosecutor knew and produced. Rule 3.8 addresses a charge the prosecutor knows is unsupported by probable cause and timely disclosure of information tending to negate guilt or mitigate an offense or sentence, subject to a court protective order. A disputed charge or a late document does not by itself establish a violation. (California State Bar rule 3.8) |
| An argument or act during a jury trial | Preserve the exact words or act, what evidence the jury heard, the objection, the judge’s ruling and any instruction or admonition. A prosecutor may argue fair inferences vigorously, but Hill distinguishes that from mischaracterizing evidence or using deceptive methods to persuade a jury. Intentional bad faith is not required for every misconduct finding. (Hill) |
| A complaint after a guilty verdict | Identify the specific misconduct and its possible prejudice in the trial record. Penal Code § 1181(5) allows a new-trial motion for prejudicial prosecutorial misconduct during a jury trial. It does not say that every improper act requires a new trial. The motion and any appeal have their own timing and preservation issues. |
An ethics-rule concern, a trial objection and a new-trial ground are not interchangeable. For example, a professional disclosure duty does not itself decide whether a particular item was constitutionally material or whether the court must dismiss a charge. Counsel needs the governing rule for the actual conduct and stage.
Does an improper statement undo the case?
No automatic result follows from the label “misconduct.” Under Hill, federal due process asks whether the prosecutor’s conduct made the trial fundamentally unfair; California’s state trial standard also addresses deceptive or reprehensible methods used to persuade the court or jury. The prosecutor still may make fair comments and reasonable inferences from admitted evidence. A court considers the words in context, the judge’s instructions and the trial as a whole. (Hill)
People v. Centeno illustrates why the exact argument matters. The Supreme Court found that a prosecutor’s analogy risked lowering the reasonable-doubt burden in that case, but it did not ban every diagram or hold that any mistaken explanation reverses a conviction. The court addressed whether the issue had been preserved and separately analyzed counsel’s failure to object. That result cannot be assumed for another trial.
During trial, counsel ordinarily needs to object promptly and request an appropriate jury admonition to preserve a misconduct claim. Hill recognizes circumstances where an objection would be futile or an admonition could not cure the harm. Deciding whether to object, request a mistrial or seek another response requires the full courtroom context; waiting to see the verdict can make the record harder to use. (Hill; Centeno)
What should you preserve for a lawyer?
Keep the charging papers; disclosure requests and production dates; relevant court orders; and the complete transcript, recording or exhibit showing the challenged act. Note when it happened, who was present, what objection or request was made, and how the judge ruled. If there was a verdict, keep the verdict forms, jury instructions and sentencing notice. Give counsel the original materials and a factual timeline; do not alter evidence or contact jurors or witnesses to investigate on your own.
Is misconduct itself a crime? Not automatically. The professional-duty and trial-error questions on this page do not establish a separate criminal charge against a prosecutor. If someone alleges a particular criminal act, its statute and required proof need separate review. The question for a person defending a case is what the challenged conduct means for that case’s record and available response.
The Law Offices of David S. Chesley can review your charging papers and the specific disclosure or trial record with you. Call (800) 755-5174 to discuss the stage of your case and what counsel can ask the court to consider.