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A fundamental principle in the American justice system is innocent until proven guilty. Therefore, the burden is on the prosecutor to prove, beyond a reasonable doubt, each element of the crime. If they fail, then the defendant must be acquitted.

When a prosecutor believes that winning a case is more important than serving justice, they may take shortcuts– that deprive the defendant of a fair trial. This type of prosecutorial misconduct can lead to loss of freedom as well as financial loss. However, there are laws in place to hold prosecutors accountable. If you have been unfairly prosecuted, speak with a civil rights lawyer in NYC about your legal options.

The Duties of a Prosecutor

Prosecutors have flexibility as long as they do not violate their ethical obligations. These obligations were explicitly adopted to protect defendants’ rights and ensure that they receive due process under the law. Rule 3.8 of The American Bar Association’s Model Rules of Professional Conduct lists ethical duties for prosecutors. These extend beyond the standard rules that bind all attorneys. A prosecutor must:

  • Refrain from prosecuting a charge if the prosecutor knows that there is no probable cause.
  • Take steps to ensure that the defendant knows of their right to counsel and has been allowed to obtain it.
  • Refrain from seeking a waiver of important rights when the defendant is not represented by counsel.
  • Disclose to the defense all evidence that could mitigate or negate the defendant’s guilt.
  • Avoid infringing on attorney-client privilege by subpoenaing a lawyer to present evidence about a past or present client.
  • Refrain from making public statements that could prejudice the public.
  • Promptly disclose new, credible information that creates a likelihood of the defendant’s innocence.
  • Seek to remedy a defendant’s conviction if the prosecutor knows of clear and convincing evidence of the defendant’s innocence.

Violations of these standards amount to prosecutorial or district attorney misconduct. If you believe a prosecutor disregarded these obligations to convict you, discuss your situation with a New York civil rights lawyer to find out more about your rights.

What is prosecutorial misconduct?

A prosecutor or district attorney makes many decisions throughout a criminal case– from who to charge, what charges to bring, and what evidence to include or provide to the defense. Ethical obligations must guide these choices. When they do not, the prosecutor may be engaging in malicious prosecution or another type of misconduct that can deprive a defendant of their rights and lead to a wrongful conviction.

Some actions that rise to the level of prosecutorial misconduct include:

  • Filing charges against someone in bad faith for an unjust purpose such as political gain.
  • Hiding exculpatory evidence– known as a Brady violation.
  • Tampering with evidence.
  • Making improper or unsupported statements in front of the jury.
  • Knowingly presenting false evidence to the court or grand jury.
  • Engaging in plea negotiations in bad faith.
  • Using discriminatory practices in jury selection.
  • Making public statements that taint the jury pool.
  • Asking the defendant damaging questions that lack any factual basis.

Sometimes misconduct is identifiable immediately, but often it is not spotted until the trial is over. If you suspect this has happened with you or your case, speak with an experienced criminal defense attorney as soon as possible.

Legal recourse for victims of prosecutorial misconduct

How can a defendant on the receiving end of unethical conduct by a prosecutor find recourse? It depends on the context.

If the misconduct is serious, casts doubt on the defendant’s guilt, and is discovered early enough, it may provide an argument to have the charges dismissed or lead the judge to declare a mistrial. If the case has concluded, the misconduct may be grounds for an appeal or other post-conviction remedy. However, suppose the misconduct was unintentional and did not raise serious questions about the case’s merit. In that case, the judge may go another route, such as instructing the jury to disregard certain evidence.

Misconduct is also a civil rights violation– so 42 U.S. Code § 1983 can provide a remedy in some cases. Depending on the nature of the prosecutor’s actions, they may be immune from suit or individually liable. Prosecutors are generally protected from suit for actions related to their jobs, but that immunity is shattered when they deliberately manufacture evidence. Municipalities employing the prosecutor may also be liable under § 1983 if their policies showed a disregard for constitutional rights or enabled the misconduct in any other way.

A successful civil lawsuit could provide compensation for the targeted defendant’s related expenses like lost wages and court costs. This may also include non-economic losses like mental anguish, and in extreme cases, even punitive damages meant to deter the prosecutor and other government officials from future misconduct.

Speak with a prosecutorial misconduct lawyer

Prosecutorial misconduct cases are complex and require an understanding of intricacies in the law. To succeed, you need a lawyer with extensive knowledge and experience, as well as the courage to take on the system.

At Friedman, Levy, Goldfarb & Green, we proudly take on the fight when it means protecting the civil liberties of defendants in Manhattan, the Bronx, and throughout New York City. Call us today to schedule a private consultation with a prosecutorial misconduct lawyer about your case.


  1. American Bar Association, Criminal Justice Standards: Prosecution Function,
  2. American Bar Association, Criminal Justice Standards: Prosecutorial Investigations,