The Untouchables: A Judicial System That Protects Misbehaved Prosecutors

By: Taneashia R. Morrell

       Contributing Writer


Prosecutors are some of the most powerful people in the criminal justice system.  Lawyers are expected to zealously advocate for their clients.  A prosecutor, being a unique type of lawyer, not only advocates for the government, but also has a professional responsibility to do justice and exercise good judgment.  Prosecutors wield tremendous amounts of legal power.  They determine which charges to file against a suspect, offer harsh or lenient plea agreements, obtain indictments from a grand jury, and have the ability to seek the death penalty for individuals who are convicted of murder.  In essence, a prosecutor is given infinite discretion over how a case unfoldsespecially in death penalty trials.  It is critical, however, to note that the burden of wielding this amount of power comes with great responsibility.


It is no secret that high stakes are involved in death penalty trials.  Accordingly, prosecutors must exercise fairness in discovery.  While the Model Rules of Professional Conduct governs the statutory responsibilities imposed upon a prosecutor, the United States Supreme Court in Brady v. Maryland (and subsequently in Giglio v. United States) pronounced that due process requires the timely disclosure of all material evidence possessed by the prosecution team that is favorable to the defense.  And a prosecutor’s duty to disclose Brady material is continuous (i.e., pre-trial, trial, and post-trial). Yet all too often, prosecutors violate Brady in order to secure a win.  In certain murder trials, prosecutors are under tremendous pressure to secure verdicts in favor of the death penalty, instead of life sentences.  As a result, the pressure to make this happen may cause a prosecutor to cross ethical lines.  When this does occur, there seldom are consequences for the prosecutor that has behaved in misconduct.


In 2010, the Northern California Innocence Project (NCIP) disclosed that there were 707 instances of prosecutorial misconduct over a 12-year period.  Out of those instances, only 1 percent of the prosecutors were disciplined.  These findings are astounding and beg the question, why is the American judicial system protecting misbehaving prosecutors?


It is perhaps unsurprising that prosecutors have been given immunity from civil rights lawsuits (e.g., Title 42 U. S. C. § 1983) for their work in the courtroom. In 1976, the U. S. Supreme Court in Imbler v. Pachtman decided that prosecutors should not fear a lawsuit every time they go to trial.  However, to the extent that prosecutors are mandated to adhere to the highest standards of professional conduct, especially when they seek the ultimate penaltydeath, prosecutors should have some form of punishment when they engage in misconduct. 


At present, prosecutors are entitled to “absolute immunity,” which immunizes officials from suit for all official acts without regard to motive.   This means that the prosecutor is “absolutely immune from any civil liability that might arise due to [their] official misconduct.” ( As a result, prosecutors face almost no incentive to uphold their legal and ethical duties when seeking convictions.  In order to curb this problem (and it is a big problem), prosecutors should no longer be entitled to absolute immunity, but instead, they should be entitled to “qualified immunity.” 


Qualified immunity acts as a shield to protect public officials from being sued by a defendant for damages, unless the public official clearly violated established law, which a reasonable official in the same capacity would have known.  This requires a two-part analysis: “(1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?” (see The Court in Pearson et al. v. Callahan reasoned “[q]ualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 


A wronged defendant should not be without civil redress against prosecutors who lie or withhold evidence, thus depriving the defendant of their liberty. Since the law of qualified immunity balances the two important interests of both a defendant and a public official, prosecutors should no longer be able to hide under the guise of absolute immunity, but instead should be entitled to qualified immunity.


Even one conviction that has been tainted by prosecutorial misconduct is a smear on the American criminal justice system.  Therefore, it is imperative that our courts begin to hold prosecutors that have behaved in misconduct accountable for their actions.