Prosecutorial Misconduct

Withholding exculpatory evidence (Brady violations)

Under Brady v. Maryland, prosecutors must disclose evidence favorable to the defense — whether it points to innocence, impeaches a prosecution witness, or affects sentencing. Failing to turn over this evidence, intentionally or negligently, is the single most common form of prosecutorial misconduct. A witness statement that contradicts the prosecution's theory, a lab report that was inconclusive, a deal offered to a cooperating witness — if the defense never sees it, the trial was not fair.

Improper statements to the jury

Prosecutors are limited to arguing facts in evidence and reasonable inferences from those facts. Vouching for a witness's credibility, commenting on the defendant's silence, appealing to the jury's emotions rather than the evidence, or misstating the law during closing argument are all forms of misconduct. Some are subtle. Others are blatant. What matters is whether the statement could have affected the verdict.

Presenting false evidence or testimony

A prosecutor who knowingly introduces fabricated evidence or allows a witness to testify falsely violates the defendant's due process rights under Napue v. Illinois. This includes allowing a cooperating witness to deny receiving a deal when one exists, presenting forensic evidence the prosecutor knows is unreliable, or failing to correct testimony the prosecutor knows is false.

Coercing or threatening witnesses

Witnesses must testify voluntarily and truthfully. A prosecutor who pressures a witness with threats of prosecution, withdrawal of immunity, or other consequences to shape their testimony is engaging in misconduct. This can also include coaching a witness to omit information favorable to the defense.

Vindictive or selective prosecution

Filing additional charges against a defendant because they rejected a plea deal, requested a jury trial, or filed a motion is vindictive prosecution. Targeting a defendant based on race, religion, or political beliefs is selective prosecution. Both violate due process and equal protection.

Abuse of grand jury proceedings

Grand juries exist to determine whether probable cause supports an indictment. A prosecutor who uses the grand jury to intimidate witnesses, presents misleading evidence to obtain an indictment, or conceals exculpatory evidence from the grand jury is abusing the process.

Identify it in the first place

Most misconduct is not obvious. It takes an attorney who knows what to look for — incomplete discovery, inconsistencies between witness statements and trial testimony, deals with cooperators that were never disclosed, forensic evidence that doesn't add up. The first step is recognizing that something is wrong.

File a motion to suppress or dismiss

If the misconduct tainted specific evidence, a motion to suppress removes that evidence from the case. If the misconduct was pervasive enough to compromise the entire proceeding, a motion to dismiss may be appropriate. Both are filed with the trial court.

Request a mistrial

If misconduct occurs during the trial — an improper statement in closing, a surprise witness the defense was never told about — the defense attorney moves for a mistrial immediately. Timing matters. Objecting on the spot and moving for a mistrial preserves the issue for appeal.

Appeal the conviction

Prosecutorial misconduct is one of the strongest grounds for reversal on appeal. The defense argues that the misconduct was prejudicial — meaning it affected the outcome — and that the conviction should be overturned. If the appellate court agrees, the case goes back for a new trial or is dismissed.

Raise it in post-conviction proceedings

Brady violations discovered after conviction are a recognized ground for post-conviction habeas corpus relief under NRS 34. If evidence surfaces that the prosecution hid favorable material, a petition can be filed to vacate the conviction — even years later.