Prosecutorial Misconduct--Recent Second Circuit Cases

In the first ten months of 1973, the United States Court of Appeals for the Second Circuit handed down seven opinions in which it discussed the issue of prosecutorial misconduct. The allegations of prosecutorial misconduct during trial, raised by the appellants among their claims of errors in these seven cases, resulted in only one reversed conviction. Reversal, however, is not the hallmark of importance. The frequency with which this claim is raised, the attention it has been given by the Second Circuit, and the impact of the remedy when applied, combine to make this issue timely and compelling for all participants in the legal profession . The issue of prosecutorial misconduct arises primarily because of a lack of specific standards relating to the conduct of counsel at trial. What types of misconduct are, in fact, grounds for reversal? When does the accumulation of incidents of misconduct become too much for the reviewing court to allow? Indeed, what conduct constitutes misconduct? To these questions there are no consistent answers. The decision in one case often will not provide any useful guidelines for either counsel or a reviewing court in a subsequent case involving similar facts. Can a prosecutor correct or improve his tactics when the acceptability of those tactics changes from case to case? An examination of these recent Second Circuit cases will point out the extent of the uncertainty and confusion marking this problem