Mental Culpability and Prosecutorial Misconduct

44 Pages Posted: 3 Nov 2008

Date Written: 1998


This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part III offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a subjective test as well. Part II discusses the use by some courts - although infrequently and inconsistently applied - of a subjective test to review a prosecutor's conduct, and analyzes the reasons that the subjective test is appropriate in all cases. Part IV attempts to rationalize the courts' use of a subjective test of a prosecutor's conduct. Part IV argues that a prosecutor's bad intentions are always relevant in analyzing a prosecutor's conduct, although not always necessary to a court's determination, and concludes that a prosecutor's wrongful intent invariably should be considered whenever evidence of a wrongful intent is available.

Suggested Citation

Gershman, Bennett L., Mental Culpability and Prosecutorial Misconduct (1998). American Journal of Criminal Law, Vol. 26, 1998. Available at SSRN:

Bennett L. Gershman (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States
914-422-4255 (Phone)
914-422-4168 (Fax)

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