Prosecutorial Misconduct
Understanding prosecutorial misconduct and how to recognize violations of due process.
What is Prosecutorial Misconduct?
Prosecutorial misconduct occurs when a prosecutor violates a defendant's constitutional rights or engages in unethical behavior that undermines the integrity of the legal process. This can happen during investigation, charging, plea negotiations, trial, or sentencing.
Brady Violations
- • Withholding exculpatory evidence
- • Hiding evidence of innocence
- • Failing to disclose impeachment evidence
- • Suppressing witness statements
Trial Misconduct
- • Making false statements to jury
- • Improper closing arguments
- • Coaching witnesses to lie
- • Inflammatory or prejudicial comments
Types of Prosecutorial Misconduct
Evidence Suppression
Failing to turn over evidence that could prove innocence or reduce charges, including police reports, witness statements, or forensic evidence.
Overcharging
Filing charges that are not supported by evidence or are disproportionate to the alleged crime to coerce plea agreements.
Witness Tampering
Coaching witnesses to change their testimony, threatening witnesses, or offering improper incentives for testimony.
Vindictive Prosecution
Pursuing charges or enhanced penalties in retaliation for exercising constitutional rights, such as demanding a jury trial.
Warning Signs of Prosecutorial Misconduct
Red Flags
- Late disclosure of evidence
- Inconsistent witness statements
- Pressure to accept plea deals
- Refusal to provide discovery
What to Do
- Document everything immediately
- Notify your defense attorney
- File motions with the court
- Report to bar associations
Reporting Prosecutorial Misconduct
Who to Contact
- • State Bar Association Ethics Committee
- • Attorney General's Office
- • Federal Civil Rights Division (DOJ)
- • Innocence Project Organizations
- • Legal Ethics Watchdog Groups
Important: Time is critical in prosecutorial misconduct cases. Document incidents immediately and seek legal counsel as soon as possible.
New York's Commission on Prosecutorial Conduct
How New York created the first prosecutorial-oversight commission in the country — and how prosecutors fought to stop it.
For decades, prosecutors were among the only actors in the justice system without an independent oversight body of their own. Judges answer to the Commission on Judicial Conduct; attorneys answer to grievance committees. New York set out to close that gap — but the effort became a multi-year fight between reformers and the state's district attorneys.
Nation's first commission is signed into law
Governor Andrew Cuomo signs S.2412-D/A.5285-C, creating the State Commission on Prosecutorial Conduct — the first body of its kind in the United States. Sponsored by State Senator John DeFrancisco, the 11-member commission was modeled on the long-standing Commission on Judicial Conduct and was empowered to review complaints against district attorneys and their assistants.
District attorneys sue to stop it
The District Attorneys Association of the State of New York (DAASNY) files a constitutional challenge in Albany County Supreme Court against the Governor and legislative leaders, arguing the law violates the separation of powers by giving the Legislature and the courts oversight of district attorneys, who are executive officials.
Chapter amendments attempt a fix
The Legislature passes chapter amendments meant to cure some of the constitutional defects flagged by the Attorney General and prosecutors — including shifting certain review responsibilities toward the Appellate Division — but the legal challenge continues.
A judge strikes the law down
Justice David Weinstein rules the 2018 law unconstitutional, finding that the New York Constitution vests the power to discipline attorneys exclusively in the Appellate Division. The commission’s structure improperly attempted to shift that authority to a separate body.
A revised, narrower commission is enacted
The Legislature passes a rewritten version (S3934) that Governor Cuomo signs. To answer the separation-of-powers ruling, the new commission is limited to investigating complaints and making findings — it refers recommended sanctions to the state’s Attorney Grievance Committees, and the power to remove a district attorney stays with the Governor.
Appointments made — then years in limbo
Chief Judge Janet DiFiore and legislative leaders make their appointments, but the commission fails to convene or hire staff for an extended period, even with $1.75 million in annual funding allocated.
First administrator hired
The commission hires its first administrator, Susan Friedman (formerly of the Innocence Project), to build the agency from the ground up — drafting operating rules and creating a public complaint process.
Public complaints finally open
After finalizing its operating rules, the commission begins accepting complaints from the public through an online portal at cpc.ny.gov. In 2025, Governor Hochul proposed increasing its annual funding to $3 million.
How prosecutors worked to block it
- A constitutional lawsuit. DAASNY sued in 2018, arguing the commission violated the separation of powers by letting the Legislature and courts supervise executive-branch prosecutors.
- A court victory. In January 2020 a judge struck the original law down, holding that only the Appellate Division may discipline attorneys.
- “It’s duplicative.” Prosecutors argued the Attorney Grievance Committees already handle attorney misconduct, so a dedicated commission is unnecessary.
- “Chilling effect.” The association warned the commission could be weaponized with frivolous complaints from defense attorneys, slowing prosecutions — and has signaled it may bring further legal challenges depending on how the commission uses its powers.
Where it stands today
The revised commission is now operating. It investigates complaints and reports its findings, but it cannot directly discipline a prosecutor — it refers recommended sanctions to the Attorney Grievance Committees, and only the Governor can remove a sitting district attorney. Complaints can be filed through the commission's official portal at cpc.ny.gov.
Sources: Office of the Governor of New York; New York State Senate; Times Union; Democrat & Chronicle; New York Law Journal; NBC New York; Columbia Law School Public Integrity scholarship; and the Commission on Prosecutorial Conduct (cpc.ny.gov).