Copyright (c) 1999 Washington University
Washington University Law Quarterly
ARTICLE: PROSECUTORIAL MISCONDUCT AND CONSTITUTIONAL REMEDIES
77 Wash. U. L. Q. 713
PETER J. HENNING *
Modern prosecutors have enormous authority in every phase of a criminal case, from the start of an investigation through the sentencing of a defendant after conviction. The source of that authority is the discretion the criminal justice system vests in prosecutors to decide whether to initiate an investigation, which charges to file, when to file such charges, and whether to offer a plea bargain or request leniency. 1 Under the current sentencing regime for federal cases, the prosecutor, not the trial judge exercises primary control over the sentence a particular defendant will receive. 2 Not surprisingly, some prosecutors have abused this authority, or at least exercised it in a fashion that calls into question the fairness of their conduct. When prosecutors abuse their broad authority, the vexing questions are whether such prosecutorial misconduct violated a defendant's constitutional rights, and, if so, what remedy to afford. 3 The relief granted for prosecutorial misconduct should redress the harm suffered by the defendant rather than merely send the government a message about the impropriety of its conduct.
Contact between individuals and the police, such as an arrest, search, or interrogation, are discrete events; therefore, any violation of the defendant's rights under the Fourth or Fifth Amendments will usually arise directly from that contact. A prosecutor, on the other hand, deals with a defendant, and more importantly, the defendant's attorney, on a routine basis throughout a criminal proceeding. There are, at least quantitatively, a greater number of constitutional rights associated with ...
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