The right to a fair and impartial trial is the bedrock of a democratic system of government. This right is enshrined in the Sixth Amendment to the U.S. Constitution and Article I, Sec. 10, of the Texas Constitution.


The State enjoys almost unfettered authority to arrest, prosecute, convict, and preserve a criminal conviction in an appellate process.


The continuing threat to the fair and impartial trial right is the tremendous power of the State not only to prosecute but to determine how to prosecute at trial. Prosecutors too often abuse this power by suppressing favorable evidence, using perjured testimony, and deliberately violating criminal procedures enacted by legislatures to ensure a fair and impartial trial. The historical behavior is part of the win-at-all-cost mentality that governs so much unchecked human behavior.


Prosecutorial Misconduct


Justice George Sutherland, in a 1935 U.S. Supreme Court decision, Berger v. the United States, defined prosecutorial misconduct as “overstep[[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal case.”



The following are the constitutional guarantees that protect an accused from prosecutorial misconduct:


  • Brady v. Maryland (1963 U.S.): Prosecutors have a duty to disclose evidence to a defendant upon request, provided the evidence is material to either guilt or punishment.
  • Bagley v. United States (1985 U.S.): Defined “material evidence” as favorable evidence that, if disclosed before trial, there is a “reasonable probability” that it would have changed the verdict. 
  • Kyles v. Whitley (1995 U.S.): Material evidence in possession of a police agency or any parts of the “prosecutorial team” must also be disclosed 
  • Norris v. State (1995 Tex. Crim. App.): Prosecutorial misconduct is significantly more prejudicial during closing arguments because it is the last impression left with the jury.
  • Pena v. State (2001 Tex. Crim. App.): Court must view suppressed evidence claims through the lens that weighs “the strength of the exculpatory evidence against the evidence supporting conviction.”
  • Ex parte Chabot (2009 Tex. Crim. App.): A defendant does not have to prove whether the prosecution intended to use false or misleading information. 
  • Ex parte Ghahremani (2011 Tex. Crim. Appeal): Due process under the Federal Constitution is violated when false or misleading information is used by the prosecution to obtain a conviction.
  • Ex parte Clinton Lee Young (2021 Tex. Crim. App.): Judicial or prosecutorial misconduct taints the entire trial process and undermines its outcome.


Intentional prosecutorial misconduct is a terminal cancer upon a fair trial in an impartial tribunal, a prerequisite of due process of law. There are four basic types of prosecutorial misconduct:


  • Suppression of favorable or exculpatory evidence;
  • Use of perjured or misleading testimony, especially through jailhouse informants and flawed forensic evidence;
  • Improper closing arguments that either vouch for the credibility of state witness or misrepresents evidence presented during the trial; and
  • Discrimination in the jury selection process by either removing or barring people of color from jury service.


It is not uncommon for prosecutors during a criminal trial to misrepresent the law; present facts not offered into evidence; make inflammatory comments or references during closing argument; make references to a defendant’s uncharged conduct or failure to testify; illicit testimony about improper “other crimes” evidence; refuse to heed a court’s repeated instructions against specific trial tactics; and insinuate defendant’s guilt through bad character references.


Defense Attorneys Must Object to Preserve for Appeal


Defense attorneys that encounter suspected prosecutorial misconduct must:

  1. Make a timely and specific objection.
  2. Request an instruction that the jury disregard the matter improperly placed before it by the prosecutor.
  3. Move for a mistrial.


The objection and request for a mistrial are essential. And depending upon the severity and impact of the misconduct, the defense should suggest, outside the presence of the jury, that the court refer the misconduct issue to the State Bar for review. This suggestion should be supplemented with a written motion that requests the trial court and the appellate courts to address the issue of accountability for the misconduct.


A fair and impartial trial cannot exist without an ethical and lawful prosecution. The prosecutor is the first safeguard to the right to a fair and impartial trial. The Supreme Court, in that 1935 Berger decision, defined the role of a prosecutor in a criminal trial 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; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is, in a peculiar and very definite sense, the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. 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. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”


The right to a fair and impartial trial is too sacred to be lost by foul play through a “win at any cost” prosecutorial mindset.