Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence

Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through postconviction proceedings.However, misconduct at the trial stage poses a unique set of difficulties for individuals accused of crimes, and is the focus of this Article.Trial misconduct includes, most commonly, improper opening statements, improper examination of witnesses, and improper closing arguments.Trial misconduct is worthy of attention due to its tremendous negative effect on both the defendant and society more generally.With regard to the defendant, the misconduct may directly violate numerous constitutional and other rights.For example, a prosecutor's closing argument may incorporate factual assertions that are blatantly false or, even if true, that were never testified to or otherwise introduced at trial.Such misconduct violates the defendant's Fourteenth Amendment Due Process right to a fair trial as well as the Sixth Amendment right to confront his accuser.