Vigilante Justice: Prosecutor Misconduct in Capital Cases

59 Pages Posted: 5 Apr 2010

See all articles by Jeffrey L. Kirchmeier

Jeffrey L. Kirchmeier

CUNY School of Law

Stephen R. Greenwald

Fordham University School of Law

Harold Reynolds

Private Practice

Jonathan Sussman

New York County Defender Services

Date Written: April 5, 2010


This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct. The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die. Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases.

In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

Keywords: capital punishment, death penalty, prosecutor misconduct, prosecutorial misconduct, prosecutor, ethics, Brady v. Maryland, Batson, criminal law, professional conduct, professional misconduct

JEL Classification: K00, K10, K14, K40, K41, K42

Suggested Citation

Kirchmeier, Jeffrey L. and Greenwald, Stephen R. and Reynolds, Harold and Sussman, Jonathan, Vigilante Justice: Prosecutor Misconduct in Capital Cases (April 5, 2010). Wayne Law Review, Vol. 55, pp. 1327-1385, 2009, Available at SSRN:

Jeffrey L. Kirchmeier (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

Stephen R. Greenwald

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Harold Reynolds

Private Practice ( email )

United States

Jonathan Sussman

New York County Defender Services ( email )

225 Broadway
New York, NY 10007-3778
United States

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