Mimesis Law
22 April 2021

Don’t Blame the Prosecutor Because You Blew The Objection

Mar. 29, 2016 (Mimesis Law) — When a criminal defense lawyer fails to abide by the professional rules and norms, it’s often either celebrated as zealous advocacy or excused as poor trial strategy. On the other hand, prosecutorial misconduct is often assigned a sinister motive. And my co-blogger, Jeff Gamso, went so far as to call it cheating:

Prosecutorial misconduct is cheating. It’s an agent of the state securing (or attempting to secure, but we don’t know about the cases where it fails since they don’t go up on appeal) convictions (or death sentences) by intentionally violating the duty to play fair.

Ineffective assistance of counsel is error. Maybe it’s egregious, maybe it’s a missed argument or a failure to object – perhaps to the misconduct of the prosecutor. It’s not, except in the most unusual case, intentional or committed in an effort to obtain a result for the client.

Jeff later commented:

No, not everything that might be called “prosecutorial misconduct” is cheating. I was describing a category – “intentionally violating the duty to play fair.” The term “prosecutorial misconduct” is really a term of art, the language we use to describe whatever a prosecutor does wrong: intentional, serious, or neither. * * *

Try this: The courts say defendants are not entitled to a perfect trial, just a fair one. And if the court believes that the evidence of guilt is strong enough, then the trial was fair regardless of any misconduct – petty or gross. But that’s not fairness. Yeah, punish the individual prosecutor who intentionally (or significantly by accident) engages in misconduct. But give the defendant a fair trial, too. Even if that means a do-over when the good judges of the court of appeals believe he’s guilty. There’s a combination that could provide some degree of real integrity to the system.

True enough that prosecutorial misconduct is a term of art. It is a rather amorphous term that may include moral violations and errors ranging from negligence to malfeasance of affirmative duties, such as a Brady violation. What the previous post largely referenced, and which will be the focus here, are the errors committed during trial.

Although the trial takes place in a competitive, adversarial system, the prosecutor is expected to operate with more restraint than defense counsel. The National District Attorneys Association has written that:

The prosecutor is an independent administrator of justice. The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected.

Similarly the American Bar Association Standards for Prosecutors states that “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”

And over 80 years ago, the Supreme Court of the United States famously held that

The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

So, the issue frequently on appeal is whether the blow struck was merely hard or foul. Yet, taken together, Jeff’s comments appear to conclude that any foul blow, unintentional or otherwise, is misconduct that should result in a new trial. Jeff concludes that “fairness” must be vindicated at the expense of finality.

But not all rule breaking is either considered cheating or equally condemned. For example, not every rule violation in a game results in player ejection or forfeiture the game. A tennis player, who was legally taking a drug for ten years, fails to notice a rule change resulting in the rules violation, would probably be viewed by most sympathetically. In contrast, Lance Armstrong behaved badly while purposefully cheating. No one cries for him. In a strict sense both Armstrong and Sharapova cheated, but we view their rule breaking in different lights.

Even more narrowly, the line between fair play and foul blows during trial is not always a bright one. As one journal noted after reviewing Minnesota Supreme Court case law, the “cases defining prosecutorial vouching are confusing and contradictory.”[1] Inadvertence by the prosecutor can be the root cause of the rule breaking, rather than calculated cheating. As illustrated by a case cited in the journal, the line can be a fine one easily crossed during an extemporaneous closing:

Illustrative of the problem is use of the words “I believe.” The Fifth Circuit has done a good job in drawing the line between permissible and impermissible argument: “Thus, an attorney properly may state, ‘I believe that the evidence has shown the defendant’s guilt,’ but he may not state, ‘I believe that the defendant is guilty.’ Similarly, an attorney properly may state, ‘No conflict exists in the testimony of the prosecution’s witnesses,’ but he may not state, ‘The prosecution’s witnesses are telling the truth,’ or ‘I believe that the prosecution’s witnesses are telling the truth.”’

The truism of the legal system is that it is adversarial, despite Judge Posner’s contrary lamentations. The system is built on the premise that the parties are sufficiently staked in adverse outcomes as to allow the issue before the court to be fully and vigorously litigated. Indeed, the rules of evidence expect an adverse party to object to any potential error. Moreover, there are sound policy reasons for the so-called contemporaneous objection rule (internal citations omitted):

The contemporaneous objection rule fosters finality of judgment and deters “sandbagging,” saving an issue for appeal in hopes of having another shot at trial if the first one misses. The contemporaneous objection rule also promotes the salutary interest of making the trial the main event. Failure to enforce it “tends to detract from the perception of the trial of a criminal case … as a decisive and portentous event.” Moreover, requiring timely objections allows trial courts to develop a full record on the issue, consider the matter, and correct any error before substantial judicial resources are wasted on appeal and then in an unnecessary retrial. A full record and a prior decision in the district court are essential ingredients to our substantive review of issues–they flesh out an issue in a way the parties’ briefs may not.

Ultimately, criminal defense attorneys bear significant blame when they fail to object to a prosecutor’s error. It seems like a minor thing, really. After all, they are fully free to be adversarial, unencumbered by the charge to seek justice. Conceivably, the client benefits more from a timely objection to an inflammatory and improper closing than a conviction followed by a prayer for a successful appeal.

This is especially so when the line is either blurry or narrow because the failure of defense counsel to object deprives the court the opportunity to cure the mistake. Characterizing all prosecutorial error as cheating no doubt soothes the souls of criminal defense attorneys everywhere. But quite often a timely objection would have both cured the error at issue and thwarted future conduct.

Fairness is important, and the rules generally reflect an effort to ensure an equal opportunity to argue and present evidence. But so too is finality important. Cases should not be retried until a procedurally perfect trial occurs; fairness can be achieved short of perfection. Fairness is about the opportunity for the defendant to object to prosecutorial errors. And when defense counsel fails to object, it is fair to reject all but the most serious errors as a basis for reversal.

[1] James A. Morrow, Joshua R. Larson, Without A Doubt, A Sharp and Radical Departure: The Minnesota Supreme Court’s Decision to Change Plain Error Review of Unobjected-to Prosecutorial Error in State v. Ramey, 31 Hamline L. Rev. 351, 385 (2008)

5 Comments on this post.

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  • Jeff Gamso
    29 March 2016 at 9:35 am - Reply

    Sure, defense counsel should timely object when a prosecutor makes an oopsie (or an intentional violation of the rules). The remedy when counsel doesn’t? So sad. Sorry.

    But you haven’t proved, Mr. Now Convicted And On Appeal, that every reasonable defense counsel would have objected, so you have nothing to complain about. And, anyway, you haven’t shown that you’d have stood a fair chance of being acquitted had there been an objection, so it’s no big deal. After all, finality.

    You know, because the prosecutor just made a mistake that didn’t get corrected and we know the trial was fundamentally fair because it got you convicted which is the right result since you haven’t proved you’re innocent.

    FINALITY! Yippee!!

    Years ago, I was being introduced to a very good judge, a one-time very good prosecutor. As we were chatting, he asked me if I was more in the due process camp or the finality camp. I said due process. I didn’t add, though I might have, that the Constitution talks about due process. It never mentions finality.

  • When Is Enough Enough? Finality v. Legitimacy | Simple Justice
    25 April 2016 at 12:14 pm - Reply

    […] the comments to this post, my co-blogger Jeff Gamso relates how he was asked by a judge whether Jeff was in either the due […]

  • Distracted by the Feel-Good Story Of Innocence
    4 May 2016 at 9:14 am - Reply

    […] and I have been squabbling here at Fault Lines (actually, in comments on a couple of his posts, see here and here) about finality v. […]

  • Ken White’s Unnecessary Confession
    28 June 2016 at 9:40 am - Reply

    […] to empower prosecutors and screw-over defendants. It is far more likely that the judicial branch prefers finality because of the time and expense involved in litigation. Plus, there are plenty of other reasons why […]

  • Terrence Koeman
    15 October 2016 at 1:31 pm - Reply

    I think the comparison to a game is not logically concluded.

    Both examples given (accidental & intentional doping) would have lost both of them the game immediately.

    Actually, in most games if you break the rules of the game and you’re *not* ejected, it is only because the rules provided for a penalty in another way to restore fairness. You break a rule playing poker? You lose immediately, no matter why you broke it.

    And note that usually if you break the rules of a game you usually *lose* by forfeit, not get another shot at it. Again, the reason why you broke the rules isn’t relevant.

    The rules are there to keep the game *fair*, breaking the rules for whatever reason per definition makes it unfair. It’s the rules that made the game fair in the first place, so per definition you can’t have fairness without adhering to the rules.

    The rules of a justice system should be at least as fair as those of a game of poker at a casino, but there are no casinos in which you don’t immediately lose the game and are ejected from the premises when you break a rule.

    The reason just doesn’t enter into it. I feel prosecutors shouldn’t even get another shot at it. Follow the rules or lose, that’s fair. The government has too much advantage to not be held to the rules with an iron fist.