The Difference between Prosecutorial Misconduct and Prosecutorial Abuse

This is a discussion of whatever differences may exist between "prosecutorial misconduct" and "prosecutorial abuse" as set forth in federal and state case law.

There are no significant differences. A look at case law throughout the federal and state systems indicates that many judges use the terms interchangeably.

There are more than 1,000 cases using the term "prosecutorial misconduct" and 566 cases using the term "prosecutorial abuse", and 148 cases which use both terms somewhat interchangeably, and without any apparent distinction.

Accordingly, when one does legal research into the issue of prosecutorial misconduct, one should also search under the term "prosecutorial abuse", and also search under related terms including "failure to disclose", "exculpatory evidence", and "favorable evidence".

Not all prosecutorial misconduct will enable an indictment to be dismissed. The Third Circuit Court of Appeals has permitted dismissal in absence of a showing of materiality (i.e., that the misconduct affected the outcome of the case). Most courts seem to apply a materiality (affecting outcome) test to warrant dismissal, but there are other sanctions which can be employed for professional misconduct.

A leading Supreme Court case is United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985).

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Copyright © 1998 by Carl E. Person