By Elizabeth Griffiths, Ph.D., Heather L. Scheuerman, Ph.D., and Ryan Brown
In the American criminal legal system, state and local prosecutors operate as the first line of defense between order and lawlessness. Prosecutors are tasked with seeking justice in the name of protecting the public and upholding the law; they are the “good guys” who “wear the white hat” (Wright & Levine, 2018: 1688). But prosecutors are also adversaries in adjudication. Once they have concluded that to seek justice is to rightly convict the defendant, seeking justice and winning become synonymous. It is perhaps not surprising, then, that prosecutors can sometimes become carried away in the heat of the battle and step beyond the bounds of fairness in the pursuit of convictions.
In a recent New Jersey Supreme Court decision (State v. Williams, 2021), for example, the court reversed Damon Williams’ conviction on bank robbery when it held that the prosecutor’s actions prejudiced the case. Here, the defendant was alleged to have passed a note to the bank teller which said, “Please, all the money, 100, 50, 20, 10. Thank you,” but no verbal threat was issued nor was a weapon brandished. The court considered:
whether the jury might have reached [the second-degree robbery conviction] because the prosecutor showed the jury a PowerPoint presentation in her closing that contained a still photograph from the movie The Shining and commented, “if you have ever seen the movie The Shining, you know how his face gets through that door.” The PowerPoint slide depicted Jack Nicholson in his role as a violent psychopath who used an ax to break through a door while attempting to kill his family (State v. Williams, 2021).
In this case, the state supreme court held that the slides and the prosecutor’s comments improperly implied the threat or use of force, which was required to substantiate a robbery conviction. However, the outcome of this case was unusual in that the court reversed Williams’ conviction. Indeed, the legal system appears relatively unwilling to seriously respond to most of these incidents and instead treats them as “harmless” (Griffiths et al., 2023; Scheuerman et al., 2023).
In New Jersey, a trial error is considered harmless unless there is a reasonable basis for concluding that the error contributed to the verdict (State v. Macon, 1971). In some states, the harmless error doctrine is more detailed, holding in Texas, for example, that the courts consider: 1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s actions); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction) (Mosely v. State, 1998).
We are currently collecting and coding all New Jersey appellate court decisions between 2010 and 2015 in which prosecutorial misconduct was recognized by the higher courts to have occurred at trial. Our research will then compare how the higher courts in New Jersey handle misconduct relative to the higher courts in Texas over the same period. We anticipate that the findings of this project will inform policies and practices around the handling of prosecutorial misconduct by the courts, which could increase equity in the outcomes of criminal legal system processing for those subject to prosecutorial overreach in securing their conviction.
Elizabeth Griffiths is a professor at the School of Criminal Justice at Rutgers University, Heather L. Scheuerman is an associate professor in the Justice Studies Department at James Madison University, and Ryan Brown is a Ph.D. student at the School of Criminal Justice at Rutgers University.
References:
Cicchini, M. D. 2018. Combating prosecutorial misconduct in closing arguments. Oklahoma Law Review 70(4): 887-941.
Griffiths, E., H. L. Scheuerman & S. Xie. 2023. Prosecutorial actus reus: Appellate review of prosecutorial misconduct and the diminishment of responsibility. International Journal on Responsibility 6: 24-41.
Koblitz, E. L. & K. D. Ringler. 2021. In search of full prosecutorial accountability. NJ Law Journal. Available at https://www.law.com/njlawjournal/2021/05/07/in-search-of-full-prosecutorial-accountability/
Landes, W. & R. Posner. 2001. Harmless error. Journal of Legal Studies 30(1): 161-192.
Scheuerman, H. L., E. Griffiths & D. S. Medwed. 2023. Post-conviction review on trial: When do appellate courts correct for prosecutorial misconduct? Crime & Delinquency 69(13-14): 2846-2873.
Shalom, Alexander & George C. Thomas III. 2012. Trial and Error: A Comprehensive Study of Prosecutorial Conduct in New Jersey: A Report by the American Civil Liberties Union of New Jersey. Available at https://www.aclu-nj.org/sites/default/files/field_documents/aclu-nj_prosecutorial_study.pdf
Wright, R. F. & K. L. Levine. 2018. Career motivations of state prosecutors. George Washington Law Review 86: 1667.
Cases Cited:
Mosely v. the State of Texas, 983 S.W.2d 259 (1998)
The State of New Jersey v. Macon, 57 N.J. 325, 337-38 (1971)
The State of New Jersey v. Williams, 244 N.J. 592 (2021)