This ongoing project involves the collecting and coding of all appellate decisions in which New Jersey’s higher courts conceded prosecutorial misconduct between 2010 and 2015. Over this five-year period, hundreds of appeals brought before either the Superior Court Appellate Division or the Supreme Court of New Jersey involved concessions of prosecutorial misconduct by the higher courts. In other words, appellate courts acknowledged that prosecutorial misconduct meaningfully affected the criminal trials of defendants in the lower courts in a sizable set of appeals.
Because “an appellate court [in New Jersey], when reviewing trial errors, generally confines itself to the record” (Wry & Hall, 2022; State v. Harvey, 1997), the defense must preserve the issue for appellate review by raising it before the trial court. Nonetheless, New Jersey appellate courts still consider issues raised by appellants under the plain error standard to determine whether the error was “clearly capable of producing an unjust result,” even when the issue was not raised at trial (Rule 2:10-2). If the appellate courts concede that an error occurred, they undertake some version of a “harmlessness” test. The standard for relief based on these tests is high; errors should be deemed harmless unless there is a reasonable basis for concluding that “the error denied a fair trial and a fair decision on the merits” (State v. Mohammad, 2016; see also State v. Macon, 1971) when appellants properly preserved the error, and plain errors have an even higher bar, requiring reversal “only where the possibility of an injustice is real and sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached” (State v. Alessi, 2020).
Our preliminary analysis of misconduct cases suggests that a slight majority of the New Jersey appellate decisions conceding prosecutorial misconduct involved some form of plain error review, and a large minority of cases involved the review of at least one preserved prosecutorial error. Like other studies, our early findings show that most of these appeals resulted in a determination by the higher courts that the prosecutorial error or misconduct was harmless (Griffiths et al., 2023; Medwed, 2012; Ridolfi & Possley, 2010; Scheuerman et al, 2023). We are currently determining whether cases involving misconduct that is preserved for review are more or less likely to result in determinations of harm compared to those cases that underwent plain error review.
In addition to examining how prosecutorial error is treated by New Jersey appellate courts, another objective of this project is to consider how New Jersey courts handle prosecutorial misconduct compared to a very different state, Texas. Texas courts are much more reluctant to review allegations of prosecutorial misconduct when the arguments were improperly preserved at trial. In limited instances, the higher courts may use discretion to address “fundamental” errors. But, for the most part, the Texas Rules of Appellate Procedure indicate that the trial court must be aware of the complaint with “sufficient specificity” for the error to be preserved and for the appellate court to review allegations (TEX.R.APP. P. 33.1(a)(1)(A)). According to the Texas courts:
The standards of procedural default, therefore, are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known (Lankston v. State, 1992).
Still, appellants in Texas have been denied review of prosecutorial misconduct as egregious as a Brady violation because the defense argued that “evidence establishing the defendant’s innocence was withheld by a material prosecution witness” in a motion for a new trial, but they failed to explicitly “cite to Brady or say the words Brady v. Maryland at the hearing” (Keeter v. State, 2005). Clearly, hairs are being split.
It is challenging to compare conditions across states, given variations in state jurisprudence around handling errors in the lower courts. While both NJ and Texas courts are similar in terms of conducting a harmless error review of prosecutorial misconduct that was preserved at trial, the plain error standard in New Jersey has the potential to be more expansive when investigating instances of misconduct that were not preserved. This is codified in Rule 2:10-2 of the New Jersey Rules of Court, specifying that “[w]hen a party does not object to an alleged trial error or otherwise properly preserve the issue for appeal, it may nonetheless be considered by the appellate court if it meets the plain error standard.” As such, the higher courts in New Jersey are better poised to be able to hold prosecutors who engage in misconduct to account. Once our analyses are completed, we expect that this distinction between states will result in the New Jersey appellate courts finding prosecutorial misconduct to be harmful (i.e., “not harmless”) in proportionately more appeals cases than in Texas. Indeed, between 2010 and 2015, the Texas appellate courts conceded prosecutorial misconduct in a total of 38 cases, and only 16% of those were deemed harmful (n=6); already we are finding substantially more concessions by New Jersey appellate courts. Our next step will be to assess whether those concessions result in determinations of harm proportionately more or less than Texas courts.
Does the larger number of concessions in New Jersey mean that New Jersey prosecutors are engaging in substantially more misconduct than are Texas prosecutors, or that the kinds of misconduct in which New Jersey prosecutors are engaged are more egregious than in Texas? Are the Texas courts less likely to concede the same types of misconduct that New Jersey judges do? Do the preservation standards in Texas limit appellants’ ability to seek relief far too often? Or are Texas trial judges more effective in “curing” misconduct that occurs at the trial stage, rendering it harmless on appeal? These kinds of intriguing questions animate our research and will be fully investigated in our final report evaluating the legal and policy landscape of higher courts’ determinations of the harm of prosecutorial misconduct.
References:
Griffiths, E., Scheuerman, H. L., & Xie, S. (2023). Prosecutorial actus reus: Appellate review of prosecutorial misconduct and the diminishment of responsibility. International Journal on Responsibility. https://doi.org/10.62365/2576-0955.1083
Medwed, D. S. (2012). Prosecution complex: America’s race to convict and its impact on the innocent. NYU Press.
Ridolfi, K. M., & Possley, M. (2010). Preventable error: A report on prosecutorial misconduct in California 1997-2009. Northern California Innocence Project Publications. http://digitalcommons.law.scu.edu/ncippubs/2
Scheuerman, H. L., Griffiths, E., & Medwed, D. S. (2023). Post-conviction review on trial: When do appellate courts correct for prosecutorial misconduct? Crime & Delinquency, 69(13-14), 2846-2873. https://doi.org/10.1177/00111287221084288
Wry, Ellen T. and Hall, Christina Oldenburg. 2022 revision. New Jersey Standards for Appellate Review. Available at: https://www.njcourts.gov/sites/default/files/courts/appellatestandards.pdf
Cases Cited:
Keeter v. The State of Texas, 175 S.W.3d 756 (2005)
Lankston v. The State of Texas, 827 S.W.2d 907 (1992)
State v. Alessi, 240 N.J. 501, 527 (2020)
State v. Harvey, 151 N.J. 117, 201-02 (1997)
State v. Macon, 57 N.J. 325, 337-38 (1971)
State v. Mohammad, 226 N.J. 71, 87 (2016)