PROSECUTORIAL MISCONDUCT & ACCOUNTABILITY
What is prosecutorial misconduct?
There are a variety of ways a prosecutor can engage in misconduct; all ways undermine the criminal legal system and erode fundamental fairness. In fact, 30% of exonerations involved 3 major categories of misconduct.
Concealing Exculpatory Evidence: contradicting witness statements, confessions by true perpetrators, forensic evidence, secret arrangements made with key witnesses to induce testimony. (73% of the exonerations involving prosecutorial misconduct, involve concealing evidence.)
Trial Misconduct: lying in court, permitting knowing perjury, and improper statements in closing arguments, like appealing to bigotry and racism.
Witness Tampering: inducing witnesses to testify to facts the police officer or prosecutor know are false.
What does exoneration mean?
Exoneration means a criminal defendant has been determined innocent and that they have been released from further serving their sentence, often meaning the individual is released from prison. Individuals exonerated are call exonerees.
In Colorado, there is a law that allows for exoneress to be monetarily compensated for the time spent wrongfully in prison: $70,000 for each year of wrongful imprisonment. C.R.S. § 13-65-102. It was signed into law by then-Governor John Hickenlooper in 2013.
What is a prosecutor?
Is a prosecutor the same as a DA?
Prosecutor is a general term for the attorney representing the government in criminal matters, regardless of the level of government being represented (city, state, or federal).
Yes, all DAs are prosecutors, but there are also other terms used to describe prosecutors. Prosecutors represent the government in criminal cases. They are the opposite of a criminal defense attorney. In municipal or city courtrooms they are called City Attorneys. In county and district state courts, they are called District Attorneys. DA stands for District Attorney (not defense attorney). In federal court, prosecutors are called Assistant United States Attorneys or AUSA.
Why is a prosecutor different than other kinds of lawyers?
Prosecutors are the enforcers of the law, and the Colorado Supreme Court has declared higher ethical duties for prosecutor than other lawyers. The essential characteristic of a prosecutor is that he or she possesses the discretion as to whether and how to bring criminal charges.
Prosecutors are not only officers of the court, but they and their investigators are peace officers in Colorado.
This prosecutorial power can result in an individual's loss of liberty for many years, and thus there has been a basis for the Supreme Court to enforce prosecutors' discovery obligations.
What is peace officer?
You know what a police officer is. However, Colorado defines a special class of people as peace officers and they are empowered to enforce the laws of the State of Colorado. Prosecutors are peace officers. C.R.S. § 16-2.5-132.
Other peace officers include city attorneys, the state lottery investigator, the state student loan investigator, the commissioner of agriculture, the coroner, and over 20 other various roles.
What is discovery?
Discovery is all the material that documents a criminal investigation:
Police Reports, Interviews, Notes
Witness Names, Addresses, Criminal Histories, and Statements
Physical Evidence (clothing, bullets, drugs)
Testable Evidence (fingerprints, DNA, breath test)
Forensic Testing Reports
Expert Opinions and Reports
911 Calls, Body Cam Footage, Photographs, Recorded Interviews, Surveillance Videos, Maps
Cell Phone Downloads, Call and Text Records
Alternate Suspect Information
Any statement of the Defendant
In order to protect defendants facing the power of the state and to maintain society’s faith in the integrity of the criminal justice system, these materials must be disclosed to the defense, as such information impacts defense investigation, negotiations, and trial strategy.
Aren't there already laws mandating prosecutors disclose discovery to the defense?
In a case defense attorneys know by heart, over 50 years ago, the U.S. Supreme Court in order to protect the fairness of the criminal justice system determined that it needed to shape the prosecution’s discovery obligations.
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 86 (1963).
In addition to the Constitutional mandate made clear in Brady, Colorado has its own rule of Criminal Procedure Rule 16 and Rule of Professional Conduct 3.8 mandating prosecutors disclose discovery. Finally, the ABA also has standards specific to prosecutors. Regardless of these laws, rules, and standards, prosecutors continue to conceal discovery from the defense, and it remains a serious problem.
What are the mandatory discovery disclosure obligations of the prosecution?
In Brady v. Maryland, the U.S. Supreme Court stressed both the affirmative duty of the prosecution to ensure that criminal trials are fair and the harm caused defendants when prosecutors fail to meet this obligation. This stems from the prosecutor's discretion in how a trial is shaped.
Therefore, the prosecution must disclose discovery, pretrial, as discovery impacts the investigation, negotiation, and trial strategy.
Check out this useful chart regarding discovery disclosures.
Does the defense have to disclose discovery, too?
The defense does not have the same obligations as the prosecution. This is because the defense does not have the same power as the prosecution. Therefore the defense must disclose
the nature of the defense,
witness names and addresses, and
the specifics of an alibi, if applicable.
Check out this useful chart regarding discovery disclosures.
What happens now if a prosecutor fails to disclose discovery?
Prosecutors are absolutely immune from civil suit, meaning they are not liable for their misconduct. Lawyers can report the misconduct to the Colorado Office of Attorney Regulatory Counsel ("OARC"), but rarely is there any consequence. In the last 18 years, the OARC has only pursued cases against four prosecutors: one did not receive any consequences, one received a suspension (and the OARC lawyer who prosecuted that case received death threats for going after a prosecutor), and the other two were publicly censured.
Without adequate measures to deter and punish prosecutor misconduct, it will continue.
Is there a need for more prosecution accountability and transparency?
Yes. Prosecutorial misconduct often goes unnoticed. The current lack of transparency often leaves prosecutorial decisions insulated from any regulation. As a result, prosecutors are undeterred from continuing to conceal evidence and commit other misconduct. In recent decades, there have been a disturbing number of revelations of egregious prosecutor misconduct that has often had disastrous results for individual defendants, such as decades of wrongful imprisonment.
Advocating for increased transparency of the prosecutorial function is far from a radical request. The power prosecutors hold and their status as representatives of the people provide sufficient independent justification for greater transparency even if prosecutors’ actions do not involve misconduct.
This is a real and widespread problem. Check out our In The News page to see for yourself.