Prosecutorial Misconduct and Constitutional Remedies

122 Pages Posted: 29 Oct 1999

See all articles by Peter J. Henning

Peter J. Henning

Wayne State University Law School


Modern prosecutors have enormous authority in every phase of a criminal case, from the start of an investigation through the sentencing of a defendant after conviction. Not surprisingly, there are instances in which prosecutors have abused their authority, or at least exercised it in a fashion that calls into question the fairness of their conduct. When prosecutors abuse their broad authority, the vexing questions are whether the prosecutorial misconduct violated a defendant's constitutional rights, and if so, what remedy to afford. In evaluating the conduct of prosecutors, the Supreme Court refers with some regularity to intent as one factor for determining whether prosecutorial misconduct caused a violation of a defendant's rights. If prosecutorial intent is relevant to the analysis of whether a constitutional violation occurred, then to the extent a prosecutor acts with the requisite improper purpose, the natural impulse is to punish the perpetrator for acting on that bad intent, much like in an ordinary criminal case.

The article analyzes how the Supreme Court determines whether prosecutorial misconduct violated a defendant's rights, and the related issue of what constitutional remedies can redress the prosecutor's violation. The issues are connected because the Court frequently refers to prosecutorial intent as a facet of its misconduct analysis. Consideration of intent raises the question whether a court should grant a remedy to deter future instances of misconduct even if the defendant did not suffer any specific harm from the violation. Once a court finds a prosecutor acted with an improper intent, then the temptation is to punish the wrongdoer even if that means granting some relief to a defendant who was not harmed directly by the misconduct. For courts reviewing a search or seizure, subjective intent is irrelevant to determining whether governmental conduct violated a person's Fourth Amendment rights. Similarly, violations of a defendant's constitutional rights that do not involve a structural error in the proceedings require application of the harmless error analysis, that if the government can show beyond a reasonable doubt that the error did not contribute to the conviction then the court may not grant a remedy despite the violation. For prosecutorial misconduct, therefore, the Constitution does not provide a remedy to deter future misconduct divorced from an assessment of harm to the defendant from the violation, i.e., whether the defendant received a fair trial and the conviction rested on sufficient evidence to support the verdict. The temptation for judges is to invoke a constitutional remedy to punish the government, regardless of whether the defendant is entitled to such relief. The problem with employing an intent standard is that it distracts from the analysis of whether the prosecutor violated the defendant's constitutional rights. Actual intent should be--and largely is--irrelevant to the constitutional analysis of whether a prosecutor's conduct violated a defendant's rights.

Keywords: Prosecutorial Misconduct, Remedies, Fifth Amendment, Sixth Amendment

JEL Classification: K14, K42

Suggested Citation

Henning, Peter J., Prosecutorial Misconduct and Constitutional Remedies. Wash University Law Quarterly, Vol. 77, p. 713, 1999. Available at SSRN:

Peter J. Henning (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Ave.
Detroit, MI 48202
United States

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