Prosecutorial Misconduct - Abuses of Discretion

Abuses of Discretion

Prosecutors are given discretion about how they conduct their business. However, while some practices are not illegal, they may be seen as abusive and in need of reform, particularly by defendants and the criminal defense industry:

• Selective prosecution, perhaps required for lack of resources, but potentially corrosive.
• Capture of the grand jury, misusing it as a tool for inquisitorial abuse, or excluding citizen complaints from being heard.
• Plea bargaining abuses, such as seeking testimony in exchange for leniency. This may solicit perjury or falsified evidence.
• “Horsetrading”, the practice of colluding with defense attorneys to agree to get some of their clients to plead guilty in exchange for letting others off.
• Threatening public officials, especially judges, with prosecution if they don't unduly support their cases.
• Tainting of jury pools with public statements by prosecutors that are either inaccurate, exaggerated, unsupported by evidence or that could be inadmissible at trial, and such statements become widely promulgated by the media.
• Prosecutors causing depositions in a related civil trial which were likely to yield exculpatory evidence to be stayed until a criminal trial concludes without the benefit of that exculpatory evidence.
• Prosecutors naming a host of “unindicted co-conspirators” in conspiracy cases to intimidate potential defense witnesses with threats of retaliatory prosecution.
• Prosecutors using their Peremptory Challenges to remove from the jury anyone with relevant experience in the complex subjects of a trial. Defense attorneys often use similar tactics. Both attempt to prevent a juror's technical knowledge from interefering with the credibility of their expert witnesses.
• Prosecutors pursuing criminal penalties for selected industry practices in Corporate America when regulatory intervention would be more appropriate. For example, prosecuting a mechanic for minor violations of the Clean Water Act rather than affording the opportunity for the mechanic to correct his error and pay the appropriate fines.
• Prosecutors using multidefendant trials to get defendants to turn on one another in the courtroom, as judges may be reluctant to allow separate trials in multi-defendant cases.