Understanding the Criminal Justice System | Prosecutorial misconduct 

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(This column is intended to address commonly asked questions about the criminal justice process for defendants. We intend to explain the roles of the various persons at each stage in this process beginning with the arrest and questioning stage and concluding with further information and resources. We will also address how long you can be held in custody and other rights and responsibilities you should be aware of. This column in no way replaces your need to personally consult your attorney-at-law or your own readings on the existing law (Prepared by Sparman and Small attorneys-at-law)

Prosecutorial misconduct 

This type of misconduct occurs when prosecutor(s) who are responsible for initiating and/or conducting the criminal proceedings against a defendant engage in irresponsible, unethical, improper or illegal behaviour that harms or prejudices the defendant’s right to a fair trial. Omissions/failure to do what is proper, ethical, legal or right by law are also considered as misconduct by the prosecution.

The following are examples of prosecutorial misconduct: 


(1.) Initiating proceedings against a defendant in ‘bad faith’. This occurs when the prosecution knows there is no realistic prospect of securing a conviction against the defendant but will proceed as a form of punishment, maliciousness or because of their own interests.

(2.) Threatening, forcing or inducing the defendant to make a confession.

(3.) Inducing a defendant through false promises/misrepresentation to make a certain plea or take a plea-bargain.

(4.) Interfering with evidential material relating to the case.

(5.) Knowingly allowing false witnesses to testify or false evidence to be admitted on behalf of the state.

(6.) Failing to disclose exculpatory evidence to the defence. Exculpatory evidence is evidence that suggests that the defendant is not guilty or deserves a lesser sentence.

(7.) Making or causing prejudicial statements to be made to the media about the defendant or the defendant’s case.

(8.) Expressing personal opinions of guilt of the defendant in the presence of members of the jury.

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