Everyone has seen a TV show or a movie where a lawyer does something dramatic in a courtroom. It could be one of those “gotcha” moments. Or maybe it’s the last-minute discovery of evidence that surprises the other party. We all know that real life in the courtroom is different. But what type of conduct can a prosecutor actually engage in during trial?

What conduct is allowed by a prosecutor during trial?

During trial, prosecutors can call witnesses. They can also present evidence and make an argument to the jury or court. For witnesses and evidence, rules of evidence and procedure control most things. In federal court cases, there are the Federal Rules of Evidence and Federal Rules of Criminal Procedure. In state court cases, there are similar statutes or rules.

But when it comes to a prosecutor’s argument, there is quite a bit of wiggle room. As one court recently put it, “prosecutors are given wide latitude in the scope of their argument.”

This means that they can focus their opening and closing arguments on whatever they want. But it also means they can use emotional language. They can emphasize gruesome photos and do other things to try to convince the jury, too.

But courts instruct juries to consider the evidence and testimony only. Instead, attorney arguments are to give context to the evidence and testimony. Whether juries follow these instructions is debatable, though.

What conduct is not allowed by a prosecutor during trial?

Prosecutors can’t use several types of conduct during trial. This conduct is known as “prosecutorial misconduct” (or sometimes “prosecutorial error”). Examples include the following:

• Failing to disclose evidence. Prosecutors have a duty to disclose evidence that helps defendants. If they fail to do so, it is misconduct.
• Making improper arguments. Prosecutors cannot make certain arguments. A common example is adding facts that are not in evidence. Another is misstating evidence. A final example is criticizing a defendant’s decision to assert their right to remain silent.
• Improperly using the media. Prosecutors also can’t use the media to make a defendant look guilty. While they can give press conferences, they can’t use those changes to make a defendant look worse.
• Presenting fake evidence. Prosecutors also can’t use false evidence or perjury (false testimony). If prosecutors use fake evidence to convict someone, there can be serious consequences.
• Discriminating during jury selection. Prosecutors also cannot discriminate against jurors. If, for example, a prosecutor strikes every Black juror, this could be misconduct.

Are there consequences for prosecutor misconduct?

Sometimes. If prosecutors use misconduct to convict someone, an appellate court could throw out the conviction. If you learn about improper conduct after an appeal, a court might give you a new trial instead. Prosecutors can also face investigations themselves. They could also face licensing penalties if they break certain rules or laws. Unfortunately, though, prosecutors don’t face accountability often.

The Takeaway:

Prosecutors must follow the rules of evidence and the rules of criminal procedure. They also cannot commit prosecutorial misconduct. If prosecutors break rules or commit misconduct, judges should do something about it. There are other options as well. In some cases, the prosecutor’s conduct could get your case dismissed.