How to Identify and Challenge Prosecutorial Misconduct on Appeal

Learn how to identify and challenge prosecutorial misconduct on appeal. Conklin Law can guide you in challenging prosecutorial misconduct on appeal.

What Is Prosecutorial Misconduct?

The primary goal of prosecutors is seeking and upholding justice. Sometimes, however, obtaining a conviction by any means possible becomes a higher priority. Intentionally or otherwise, a prosecutor may engage in misconduct, such as knowingly presenting false evidence or withholding favorable evidence from the defense counsel. Such acts are known as prosecutorial misconduct.

Prosecutorial misconduct can occur at any stage of the criminal legal process, including grand jury proceedings, pretrial hearings, and trial. It not only violates the defendant’s constitutional right to a fair trial but also undermines the integrity of the entire criminal justice system.

If you or your loved one is convicted due to misconduct by the prosecution, you have the right to appeal on that basis. Conklin Law can provide you with personalized legal advice and representation throughout your appeal process.

What Acts Constitute Prosecutorial Misconduct?

Many illegal and unethical acts can constitute prosecutorial misconduct, especially when they significantly impact the trial outcome. Such acts may include:

  • Withholding exculpatory evidence favorable to the defense
  • Prompting false testimony
  • Engaging in discriminatory practices
  • Improper plea bargaining
  • Coercing confessions
  • Denying the right to counsel

What Are the Types of Prosecutorial Misconduct?

Acts that constitute prosecutorial misconduct usually fall into the following four types:


Suppression of Evidence

The prosecution may withhold evidence that may be favorable to the defense to secure a conviction. Failing to disclose exculpatory evidence during discovery violates the defendant’s due process rights.


Introducing False Evidence

Prosecutors may deliberately present fabricated or misleading evidence to convince the jury of the defendant’s guilt. False evidence can be the result of:

  • Manipulating witness statements
  • Tampering with physical evidence
  • Presenting false documents or expert opinions


Using Improper Arguments

According to the law and professional ethics, the prosecutor should not make extrajudicial statements or improper arguments during the trial. Examples of arguments include:

  • Expressing personal opinions on the case, defendant, or defense attorney
  • Issue inflammatory comments such as discriminatory claims or arguing facts not available in evidence.
  • Comment on a defendant’s choice not to testify.

Such inappropriate comments are usually made during the opening and closing arguments. Although improper arguments rarely rise to the level of misconduct, they may if the argument is particularly egregious.


Discriminatory Jury Selection Practices

Prosecutors may engage in improper conduct during jury selection, such as excluding potential jurors based on race, gender, or other protected classes.

How to Appeal a Conviction Based on Prosecutorial Misconduct

The first step to challenge prosecutorial misconduct on appeal is to consult an experienced appeals attorney. Your attorney will go through your trial record and transcripts for possible acts of prosecutorial misconduct. They will also review relevant case law and governing laws to establish the validity of your appeal.

Once you and your lawyer have identified misconduct by the prosecution, you can initiate the appeals process. Here’s how it usually goes:

  1. File a Motion for a New Trial with the trial court within 30 days of the judgment.
  2. If your motion is denied, initiate the direct appeal process by filing a notice of appeal with the sentencing court within 30 days of your motion’s denial.
  3. Draft and file the brief with the Georgia Court of Appeals or Supreme Court of Georgia. The brief should describe the prosecution’s misconduct and its negative effect on the outcome of your trial.
  4. Respond to the prosecution’s opposing brief.
  5. Attend the oral argument if requested by the appellate court.

Once all the required written documents are filed, the appellate judges will review your case and produce a decision. If your appeal is granted, you may receive a retrial, an acquittal, or a modified sentence.

Penalties for Prosecutorial Misconduct

According to the State Bar Rule 8.4, an attorney can face a maximum punishment of disbarment if they:

  • Commit fraud, deceit, misrepresentation, or dishonesty

  • Violate or induce the violation of the law or the Georgia Rules of Professional Conduct

  • Commit a crime that affects their reputation and fitness as an attorney

This rule applies to all members of the Georgia State Bar, including attorneys from the prosecutor’s office.

Moreover, Rule 3.8 describes the responsibilities of a prosecutor in upholding justice, including:

  • Only prosecuting charges supported by probable cause

  • Granting the accused their rights to counsel

  • Disclosing evidence to the defense in a timely manner

  • Disclose newly discovered evidence

  • Remedy a wrongful conviction

Violating Rule 3.8 may lead to disbarment, depending on the severity of the violations. If you are a victim of prosecutorial violations punishable under the Georgia Rules of Professional Conduct, you can file a complaint with the State Disciplinary Board.

Can You Sue a Prosecutor for Misconduct?

If you were wrongfully convicted due to the prosecutor’s misconduct, you might be able to file a civil action against them. However, you must prove the following to win your claim:

  • The case ended in your favor.
  • The prosecution engaged in malicious conduct during the criminal proceeding.
  • You suffered loss or injury.


When Does Prosecutorial Misconduct Not Result in a New Trial?

Not all prosecution misconduct leads to a new trial or dismissal of a case. According to the harmless error doctrine, the appellate court may affirm the trial court’s judgment if it decides that the prosecutorial misconduct didn’t affect the trial’s outcome. Therefore, if the prosecutor’s error was harmless, even if it violated your rights, an appellate court won’t grant a new trial.

However, a prosecutor may face disciplinary sanctions or other consequences for their misconduct. However, such penalties don’t always correct the harm done to the defendant.

If you believe that prosecutorial misconduct occurred during your criminal trial and affected its outcome, consult with an experienced appeals attorney to discuss your options for challenging the conviction. They can guide you through the appeals process and help you seek justice for any misconduct that may have occurred during your trial.

How to Identify Prosecutorial Misconduct on Appeal

In order to successfully challenge prosecutorial misconduct on appeal, it is important first to identify potential instances of misconduct during the trial. Some common signs of prosecutorial misconduct include:

  • Manipulating witness statements, such as coercing or intimidating witnesses to change their testimony.

  • Tampering with physical evidence, such as planting or altering evidence.

  • Presenting false documents or expert opinions to mislead the jury.

  • Using inadmissible evidence against the defendant.

  • Making improper arguments during trial, such as expressing personal opinions on the defendant’s guilt or commenting on their decision not to testify.

  • Engaging in discriminatory jury selection practices, such as excluding potential jurors based on protected classes.

It is important to note that not all errors made by prosecutors constitute misconduct. In order for an error to be considered prosecutorial misconduct, it must significantly impact the outcome of the trial and violate the ethical obligations of the prosecutor. It is always best to consult with an experienced attorney to determine if misconduct has occurred and what steps can be taken to challenge it on appeal.

Conklin Law Can Help You

The appeals process is complex and requires the assistance of knowledgeable legal counsel. An experienced criminal appeals lawyer can:

  • Identify and present evidence of prosecutorial misconduct in your case

  • Prepare the necessary paperwork and file it within the specified time limits.

  • Represent you in the oral argument

  • Provide the much-needed legal advice and guidance throughout the process

Tyler Conklin from Conklin Law has successfully pleaded in front of Georgia’s two appellate courts for years. We may be able to get you the justice you deserve. Contact us today to schedule a consultation.

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