Prosecutorial misconduct in Nevada criminal cases occurs when prosecutors “prejudice” a defendant’s right to a fair trial by violating legal or ethical rules. Common examples of misconduct by prosecutors include:
- Asserting facts not in evidence, offering inadmissible evidence, or withholding evidence favorable to the defendant,
- Making inflammatory remarks or commenting on a defendant’s decision not to testify,
- Giving unfounded personal opinions or vouching for a witness’s credibility,
- Witness coaching or witness intimidation, and
- Discriminating during jury selection
Whenever an instance of prosecutorial misconduct may have contributed to a conviction, the defendant can file a motion for a new trial and/or file an appeal. The court would then determine whether the misconduct was “prejudicial” enough to justify overturning the conviction and ordering an entirely new trial.
One of the most important roles of a defense attorney is to “object” in court whenever a prosecutor commits misconduct. This objection “preserves” the matter as an issue for a future appeal. If the defense attorney fails to object, it is much harder to win an appeal.
In this article, our Las Vegas criminal defense attorneys discuss the following topics related to prosecutorial misconduct in Nevada:
- 1. Definition
- 2. Types
- 2.1. Admitting inadmissible evidence
- 2.2. Giving unfounded personal opinions
- 2.3. Withholding evidence favorable to the defendant
- 2.4. Inflammatory remarks
- 2.5. Asserting facts not in evidence
- 2.6. Remarking on the defendant’s decision not to testify
- 2.7. Discrimination during jury selection
- 2.8. Witness intimidation
- 2.9. Vouching for a witness’s credibility
- 2.10. Witness coaching
- 3. Objecting to misconduct
- 4. Prejudice by misconduct
- 5. Remedies
- 6. Consequences for the prosecutor
Mistakes by prosecutors may be enough to get a guilty verdict overturned and a new trial granted in Nevada.
1. Definition of prosecutorial misconduct in Nevada
Prosecutorial misconduct is when government attorneys knowingly or recklessly violate ethical or legal standards while prosecuting a criminal case in Nevada.1
Prosecutorial misconduct occurs when prosecutors forget that their mission is not to win a guilty verdict at all costs but rather to pursue truth above all else. As the United States Supreme Court said:
“[A prosecutor’s interest] in a criminal prosecution is not that it shall win a case, but that justice shall be done…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.”2
Prosecutorial misconduct typically does not comprise innocent errors made by prosecutors. Though depending on how much the error hurt a defendant’s right to a fair trial, an honest mistake could be sufficient to reverse a conviction.
Note that prosecutors are held to the same high standards at all times during the criminal court process, including pretrial proceedings, trials, or sentencing hearings.
Also note that all types of prosecutors are expected to avoid misconduct, including:
- deputy city attorneys in municipal courts (such as the Las Vegas City Attorney for Las Vegas Municipal Court);
- deputy district attorneys in justice and district courts (such the Clark County District Attorney’s Office for Las Vegas Justice Court and the Eighth Judicial District Court in Clark County); and
- Assistant United States attorneys (AUSAs) in federal court, such as the United States District Court for the District of Nevada and the Ninth Circuit Court of Appeals
2. Types of prosecutorial misconduct in Nevada
This section summarizes ten forms of misconduct that may be committed by prosecutors:
2.1. Admitting inadmissible evidence
Nevada law has strict rules about what evidence may be admitted and what evidence is too irrelevant or prejudicial to be admitted. In general, the following types of evidence are usually inadmissible in criminal trials:
- hearsay,
- character evidence, and
- polygraph test results3
Prosecutors may try to use legal loopholes to sneakily or casually introduce otherwise inadmissible evidence. But if the court finds this inadmissible evidence deprived the defendant of his/her rights to a fair trial, the defendant could be entitled to a new trial.
2.2. Giving unfounded personal opinions
Prosecutors have to be very careful that everything they say has a basis in the evidence. In general, they may not express personal opinions that are baseless. They may only express personal opinions that are drawn from admissible evidence.4
Example: Jerry is on trial for murder. Jerry’s defense is that his brother was his alibi. The prosecutor then says that Jerry’s brother is a pathological liar. However, there is no evidence to support that claim. Therefore, the prosecutor’s claim is prosecutorial misconduct.
In the above example, Jerry’s attorney should object when the prosecutor makes the baseless claim about the alibi. The judge could then “sustain” the objection and instruct the jury to disregard what the prosecutor said.
2.3. Withholding evidence favorable to the defendant
Prosecutors are required to reveal all relevant evidence, especially if it suggests that the defendant may be innocent. Suppressing evidence that could cause the defendant to be acquitted is considered a Brady violation.5
Example: Ian is accused of rape. His defense is that the accuser falsely accused him. Indeed, the accuser confides in the prosecutor that she lied about the rape because she was angry at Ian. The accuser then kills herself.
The prosecutor decides not to reveal that the victim recanted her story, and Ian gets convicted. Ian should have his conviction reversed on appeal if his defense attorney can show that the prosecutor suppressed evidence of the victim recanting.
In the above example, the prosecutor would also probably lose his license to practice law. Pursuing a conviction without revealing material evidence of the defendant’s innocence is as serious as prosecutorial misconduct gets. In these cases, the defense will often file a Brady motion.
2.4. Inflammatory remarks
Appealing to the jury’s passions may qualify as misconduct.
Prosecutors walk a fine line between being zealous and being overly dramatic. Prosecutors can enthusiastically present their case, but their remarks cannot rise to the level of inflaming the jury’s passions.6
An example of an inflammatory remark is a prosecutor in a murder case asking the jury to attempt to imagine how the victim felt being stabbed to death. How being murdered feels is not relevant to whether or not the defendant is the person who committed it.
2.5. Asserting facts not in evidence
It is a form of misconduct for prosecutors to reference information that has not been substantiated.7
Example: Talia is on trial for burglary. During closing remarks, the prosecutor tells the jury that burglary rates have lessened considerably ever since Talia was arrested. However, the prosecutor had never introduced any evidence during the trial to support that burglary rates have declined. Consequently, mentioning that burglary rates have reduced is prosecutorial misconduct.
Note that one mention of unsubstantiated facts may be insufficient to get a guilty verdict overturned on appeal. But if the prosecutor continually made unsupported statements — or emphasized the same unsupported remark repeatedly — then chances are higher that the prosecutor’s misconduct could be grounds for overturning a conviction.
2.6. Remarking on the defendant’s decision not to testify
Prosecutors are not supposed to comment on criminal defendants who choose not to take the witness stand in their own defense. Everyone has the Fifth Amendment constitutional right not to testify at his/her own criminal trial.8
Jury members may already be naturally suspicious of defendants who do not testify. So when a prosecutor hints that the defendant is not testifying because he/she has something to hide, the defendant’s rights to a fair trial are clearly violated.
2.7. Discrimination during jury selection
Prosecutors in criminal cases are supposed to help choose a jury of the defendant’s peers. Therefore, they are not allowed to discriminate on such bases as:
- race or ethnicity,
- gender,
- religion, and
- other similarly protected groups9
For example, if a defendant happens to be Hispanic, a prosecutor would be committing misconduct by attempting to exclude Hispanics from the jury. Part of the defense attorney’s job is to detect when prosecutors engage in discrimination, and to challenge it right away.
2.8. Witness intimidation
Prosecutors are prohibited from intimidating witnesses in order to keep them from testifying on the defendant’s behalf. Examples of witness intimidation include:
- a D.A. threatening to charge a witness criminally if the witness chooses to testify;
- an assistant U.S. attorney threatening to deport a witness if the witness chooses to testify; or
- a city attorney threatening the children of a potential witness in order to keep him or her from taking the stand
Prosecutors found to engage in witness tampering can face professional discipline, the loss of their law license, and even criminal charges. And if the intimidation caused prospective material witnesses not to testify, an appeals court would probably overturn the conviction(s) and order a new trial.10
2.9. Vouching for a witness’s credibility
Prosecutors may not vouch for the truthfulness or accuracy of a witness’s testimony. For instance, it is wrong for a D.A. to say during closing arguments, “I’ve worked with the forensic expert for 20 years, so I know he could not have contaminated the blood samples!”
Note that vouching for a witness’s credibility may not be enough to get an entire verdict thrown out on appeal. The appeals court would weigh whether the prosecutor’s misconduct was “harmless” or not.11
2.10. Witness coaching
Prosecutors are allowed to engage in witness preparation, which helps witnesses understand the importance of telling the truth and what to expect once they are on the witness stand. But prosecutors are not allowed to “coach” witnesses into making false statements.12
3. The importance of objecting to misconduct in a Nevada criminal trial
In general, a defense attorney must formally object to a prosecutor’s misconduct right after it happens; otherwise, the defense attorney may not be able to use the misconduct as grounds to challenge a guilty verdict. By objecting to the misconduct, the defense attorney is “preserving the matter for appeal.”13
When a defense attorney makes an objection, the judge can either:
- “sustain” it and instruct the jury to disregard what the prosecutor said; or
- “overrule” the objection and instruct the prosecutor to proceed
Even if the judge “sustains” the objection, the defense attorney can still appeal an ensuing guilty verdict: The defense attorney could argue that the prosecutor’s misconduct poisoned the jury’s minds, and the judge’s instruction to disregard the misconduct was ineffectual.
If the defense attorney neglects to object to misconduct right after it happens, then it is very difficult to convince an appeals court to overturn a guilty verdict because of the misconduct. Instead, the defendant could appeal a guilty verdict on the grounds that he/she had “ineffective assistance of counsel”.14
4. The importance of prejudice caused by misconduct in a Nevada criminal trial
A prosecutor’s misconduct alone is not sufficient grounds to overturn a guilty verdict: The misconduct must have prejudiced the defendant by materially affecting the outcome of the trial.15
Truthfully, misconduct occurs in nearly every criminal case. Prosecutors are human too and make mistakes. If the defendant was not harmed by the misconduct, then an appeals court will not order an entirely new trial.
Sometimes it is not immediately clear whether a certain incident of misconduct is harmful to the defendant. This is why it is so important for the defense attorney to object in court when the potential misconduct occurs. (See the previous section for more information.) As long as the defense attorney objects, the defense attorney is then free to bring up the misconduct as an issue on appeal.
5. Remedies for victims of prosecutorial misconduct in Nevada
Whenever a prosecutor may have committed substantial misconduct in a criminal case that affected the outcome, the defendant can ask for a new trial by either:
- filing a motion for new trial; or
- filing an appeal
Note that there are several grounds in addition to prosecutorial misconduct that could cause a judge to grant a new trial or overturn a verdict on appeal. Some of these include:
- ineffective assistance of counsel;
- insufficient evidence;
- new evidence;
- jury misconduct; and
- judicial error
Also note that defendants do not have to use the same attorneys who tried their case to appeal their cases as well. Defendants often hire new counsel to handle their appeals, especially if one of their arguments is that “ineffective assistance of counsel” contributed to their guilty verdict.
5.1. A motion for a new trial
Like it sounds, a motion for a new trial is when the defense attorney asks the trial judge to disregard the verdict and grant an entirely new trial. In general, defendants have only seven (7) days after the guilty verdict to file a motion for a new trial.
Predictably, trial judges are never anxious to overturn trials they presided over. But even though new trials are difficult to get, it is still a good idea for defendants to exhaust all their legal remedies. And if they can show that the prosecutor’s misconduct prejudiced their case, the judge should grant a new trial.16
5.2. An appeal
An appeal is when a defendant takes his/her case to a higher court in order to review the trial court’s ruling. Appeal court judges do not retry the case; instead, appeal court judges determine whether the trial judge abused its discretion.
For instance, if the appeals court finds that any incidents of prosecutorial misconduct prejudiced the defendant, it can overturn the verdict and order a new trial. Or if the appeals court finds that any incidents of prosecutorial misconduct were “harmless,” then it would affirm the guilty verdict.
If the criminal trial was in district court, the defendant has thirty (30) days following the conviction to start the appeals process. If the criminal trial was in justice court, then the defendant has only ten (10) days to start the appeals process.17
6. Consequences for the prosecutors who committed misconduct in Nevada
Prosecutors who commit misconduct in a criminal case not only run the risk of having to retry the case. They also face formal discipline from the Nevada State Bar. Depending on the severity of the case, the Bar may either:
- admonish the prosecutor,
- temporarily suspend the prosecutor from practicing law, or
- permanently revoke the prosecutor’s license to practice law
Should the press learn about the case, the prosecutor could receive negative publicity that remains on the internet forever. And if the misconduct was serious enough, the prosecutor could face criminal charges as well.18
Legal References
- See Thomas v. Eighth Judicial Dist. Court of Nev., 402 P.3d 619, 133 Nev. Adv. Rep. 63 (2017). See also AB 101 (2023).
- Berger v. United States, 295 U.S. 78, 88 (1935).
- Buschauer v. State, 106 Nev. 890, 804 P.2d 1046 (1990).
- United States v. Young, 470 U.S. 1, 18-19 (1985)(“The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”).
- See Mazzan v. Warden, 116 Nev. 48, 993 P.2d 25 (2000).
- McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984).
- Greene v. Nev., 113 Nev. 157, 931 P.2d 54 (1997).
- Fifth Amendment, U.S. Constitution (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”).
- Watson v. State, 335 P.3d 157, 130 Nev. Adv. Rep. 76 (2014)(referencing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)).
- Steese v. State, 114 Nev. 479, 960 P.2d 321 (1998)(“In Rippo v. State, 113 Nev. 1239, 1251, 946 P.2d 1017, 1025 (1997), we held that witness intimidation by a prosecutor warrants a new trial if it results in a denial of the defendant’s due process right to a fair trial.”).
- Evans v. State, 117 Nev. 609, 28 P.3d 498 (2001)(“The prosecution may not vouch for the credibility of a witness either by placing the prestige of the government behind the witness or by indicating that information not presented to the jury supports the witness‘s testimony.”).
- See Geders v. United States, 425 U.S. 80 (1976).
- Leonard v. State, 17 P.3d 397, 117 Nev. 53 (2001)(“Generally, failure to object will preclude appellate review of an issue…This court does, however, have discretion to address issues not preserved for appeal where there is plain error affecting the defendant’s substantial rights.”).
- Kirksey v. State, 112 Nev. 980, 923 P.2d 1102 (1996).
- See Leonard v. State, 17 P.3d 397, 117 Nev. 53 (2001); Dearman vv State, 93 Nev. 364, 566 P.2d 407 (1977)(“When a guilty verdict is free from doubt, even rather aggravated prosecutorial remarks will not justify reversal.”).
- NRS 176.515.
- NRS 177.055.
- Megan Rose, “Nevada Pardons Wrongfully Convicted Man Featured In V.F./Propublica Story,” Vanity Fair (November 9, 2017).