The Honorable Justice Alexander George Sutherland described a prosecutor as a "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." (1)
To govern impartially does not, however, require that a prosecutor check his/her zeal at the door. "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." (2)
A prosecutor's role is fraught with unexpected difficulties. A prosecutor must make countless legally and factually complex decisions in determining how to make an opening statement, question witnesses and conduct closing arguments. The fact that a prosecutor errs in making a decision should not warrant the moniker of "misconduct." There is a distinction between "prosecutorial error" and "prosecutorial misconduct."
Appellate courts across the nation have generally not delineated between "prosecutorial error" and "prosecutorial misconduct." But, based upon the definitions of "misconduct" and "error" found in case law, there is a distinction to be made between the two types of conduct.
"MISCONDUCT" VERSUS "ERROR"
Black's Law Dictionary defines "misconduct" as "a dereliction of duty; unlawful or improper behavior." (3) It also defines it as "An attorney's dishonesty or attempt to persuade a court or jury by using deceptive or reprehensible methods." (4) Section 8.4(c) of the Model Rules of Professional Conduct ("MRPC") defines professional misconduct as "engaging] in conduct involving dishonesty, fraud, deceit or misrepresentation." MRPC 8.4(d) defines professional misconduct as "engaging] in conduct that is prejudicial to the administration of justice."
"WILLFUL" VERSUS "ERROR"
There are a number of examples of willful acts of misconduct in criminal law. Even after the court ordered him to stop, the prosecutor repeatedly called the defendant a liar; (5) where the prosecutor told the jury that it is "every mother's nightmare [to find] ... some black, military guy on top of your daughter;" (6) where the prosecutor urged the jury to think about Mother's Day and how the victim would never be a mother; (7) and where the prosecutor withheld evidence from the defendant. (8)
The term "error" is more appropriate in situations where the prosecutor has simply made a mistake. Black's Law Dictionary defines "error" as "[a]n assertion or belief that does not conform to objective reality; a belief that what is false is true or that what is true is false; mistake." (9) A second definition defines "error" in the context of a judge's decision as "[a] mistake of law or of fact in a tribunal's judgment, opinion or order." (10)
There are a number of examples where the prosecutor has committed an error, but the error does not appear to be willful. For example, where the prosecutor erred in following the proper procedure for impeaching a witness, (11) misstated the evidence, (12) misstated the law, (13) or argued facts not in evidence. (14)
COURTS HAVE RECOGNIZED A DIFFERENCE BETWEEN "MISCONDUCT" AND "ERROR"
Some courts have recognized a distinction between "misconduct" and "error." In People v. Jasso, the California Court of Appeals found that "the concept of 'prosecutorial misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. (15) A more apt description of the transgression is prosecutorial error." (16)
In State v. Leutschaft, the State took issue with the term prosecutorial misconduct, arguing that the term misconduct "implies...
