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Abstract

The United States Supreme Court has said, “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Unfortunately, the commission of error will inevitably be a part of our legal system, as we are all – judges and attorneys – engaged in a human endeavor. The unavoidable commission of human error obviously extends further to the criminal justice arena.

When trial judges make mistakes at trial, such as improper admission of evidence or testimony, reviewing courts often refer to such error as “judicial” or “trial” error. When criminal defense attorneys make “mistakes that fall below an objective standard and that ultimately prejudices their clients, reviewing courts refer to such conduct as ‘ineffective assistance of counsel.’” Reversals or remands based on judicial error or ineffective assistance of counsel are typically reported as mere “legal technicalities,” or simply “inadequate presentation of a defense.” However, all too often in Illinois, when prosecutors make mistakes or commit error in the trial process, defense counsel, defense advocates, and even at times reviewing courts refer to these errors as “prosecutorial misconduct,” regardless of intent or how the error may or may not have prejudiced the defendant. Calling a prosecutor’s error “prosecutorial misconduct” when such error does not meet that label implies an intent to mislead, obstruct justice, or even subvert the criminal justice system.

Until a recently published Illinois Appellate Court opinion, People v. Williams, courts have been remiss to admonish defense counsel for using the term “prosecutorial misconduct” when the acts at issue amount, at most, to mere error, or alternatively, to encourage defense counsel to refrain from doing so.

This article first aims to define what actions on the part of prosecutors amount to prosecutorial misconduct by discussing the role of intent and the use of a cumulative pattern of misconduct in the trial process which prejudices the defendant. Second, the article discusses multiple instances in Illinois over the past four years where the defense bar has accused prosecutors of misconduct when the acts at issue were nothing more than, at most, mere error on the part of prosecutors.

Finally, it discusses a recent Illinois Appellate Court decision that took aim at the pervasive use of the term “prosecutorial misconduct” when the actions underlying the claims did not call for it.

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