In a recent study of prosecutorial misconduct allegations in Pennsylvania state and federal courts over a 17-year span, the Quattrone Center for the Fair Administration of Justice found a lack of systemic transparency, significant challenges regarding access to information, and a lack of functional accountability mechanisms and deterrents throughout the state’s criminal justice system.
“Hidden Hazards” details the findings of the Center’s review of 4,644 opinions issued between 2000 and 2016 containing 7,207 separate claims of prosecutorial misconduct. Quattrone researchers found two categories of misconduct responsible for over half of the claims identified in the study: improper withholding of exculpatory evidence by prosecutors and improper comments made by prosecutors during closing arguments.
Other prevalent categories of prosecutorial misconduct allegations included making improper remarks during trial and presenting false evidence.
The study also found that a significant percentage of prosecutorial misconduct claims go unaddressed by courts. Of the 7,207 identified claims of prosecutorial misconduct analyzed in the report, courts allowed 1,775 (25%) to remain unaddressed. Of the 5,432 claims that were addressed, courts found prosecutorial misconduct in 204.
Moreover, even when misconduct was discovered, researchers found virtually no functional corrective or accountability mechanisms — only four Pennsylvania prosecutors received official public discipline for prosecutorial misconduct during the period studied.
“Prosecutors have a sworn obligation to uphold justice, accuracy, and fairness,” the report states. “Any suggestion that a prosecutor could abandon his or her obligation to justice to secure a specific result — whether intentionally or accidentally — is deeply troubling. Even accidental mistakes can be hugely consequential to the crime victim, family members, and the defendant and greatly undermines public confidence in our judicial system.”
Quattrone Center researchers read and analyzed each opinion to understand how prosecutorial misconduct claims were raised, the types of misconduct allegedly involved, how often courts decided claims on their merits, and how often courts found prosecutorial misconduct.
The report also identified the considerable challenge of quantifying “invisible” prosecutorial misconduct because multiple systemic factors allow the true extent of prosecutorial misconduct to elude a complete review. For example, the report notes, only about two percent of criminal cases ever go to trial — 71 percent of prosecutions ended in guilty pleas and 27 percent were diverted, withdrawn, or dismissed before proceeding to trial, thus evading any level of external scrutiny for potential error by prosecutors.
“One of the main takeaways from the project was just how difficult it is to identify cases of prosecutorial misconduct using publicly available sources,” said Ross Miller, Assistant Director of the Quattrone Center and one of the authors of the report. “With so few charged cases ever making it to trial, and therefore avoiding full discovery or any meaningful fact-finding process, the available records of prosecutor conduct are pretty slim. This report provides a floor for instances of prosecutorial misconduct, and we look forward to working with prosecutors and policymakers to use this data as a baseline for policy changes that will reduce these types of errors throughout the state.”
To address both the presence of prosecutorial misconduct and the lack of transparency that prevents identification of misconduct, the report outlines 10 policy recommendations for Pennsylvania state and federal courts and prosecutors’ offices:
- Require open file discovery.
- Adopt rules 3.8(g) & (h) of the ABA Model Rules of Professional Conduct.
- Require prosecutors to certify compliance with Brady prior to plea or trial.
- Enhance and expand prosecutorial self-regulation and reporting.
- Formally review cases of prosecutorial misconduct.
- Require automatic reporting of prosecutorial misconduct when it is identified.
- Eliminate absolute immunity for prosecutors in Pennsylvania.
- Create a civil tort remedy for individuals who are harmed by intentional or grossly negligent prosecutorial misconduct.
- Consider a criminal statute specific to intentional suppression of evidence and apply other statutes relevant to prosecutor misconduct.
- Establish a prosecutorial oversight commission to identify and address prosecutorial misconduct.