Prosecutorial misconduct

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Recommended: Compare and contrast national and state court systems

In the US and state court systems, judges defense attorney’s and the prosecutor’s office have full immunity in carrying out their duties. In short if either a judge or the District Attorney’s reaches a wrong decision or if a decision is reached by employing means that run contra to judicial and/or legal ethics that person cannot be held accountable except by the state bar or judicial authority. Prosecutorial misconduct takes advantage of these immunities designed to shield the ethical at-torney and employ them for reason ranging from power to pressure, in order to cut corners and an over reaching need to “Win at all Costs.”
On the federal level, the concept of prosecutorial immunity while broad is not as absolute as many people may think. When investigated, the authority is to look at the “nature of the function performed, not the identity of the actor who performed it.” As established in Forrester v. White, (1988) (Justia, Supreme Court Center). This known as the “functional test” to immunities. When a prosecutor performs “advocative” conduct, that is, he “act[s] within the scope of his duties in initiating and pursuing a criminal prosecution,” Imbler v. Pachtman, that person is absolutely immune from suit (Justia, Supreme Court Center). However, if in the performance of the advocative conduct the prosecutor at their trial improperly fabricated evidence and withheld evidence of an alternative suspect, can that prosecutor be sued? This was the subject of a suit brought by the defendants of Pottawattamie County v. Mcghee (Oyez Project).
In referencing absolute immunity, the eighth circuit court reached an unanimous decision that such conduct did not fall under advocative conduct and thereby a prosecutor could be held liable for ...

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..., including but not limited to prosecutors unwilling to take to trial certain; less people willing to become prosecutors leading to more plea bargains and an increased length of time be-fore a case is tried; possibly denying the accused right to a speedy trial. In addition, not having immunity could make matters worse as attorney misconduct may go even more underreported for fear of reprisal. In the end, not having total immunity will not solve the problem: a more vigorous oversight would and increased funding would go along to increase accountability, additionally it would be the ethical attorney that would have the most to lose. This quote best states the reason for total immunity for prosecutors: "…better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation” (Lexis Nexis).

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