Prosecutor Misconduct and Good Faith Error: A Reanalysis of Two Studies in California and Texas




Hernandez, Tiffany Tribbey

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Peer-reviewed articles and media reports reference only a few available studies to support the conclusion that prosecutors often commit misconduct but are rarely disciplined, although the validity of these studies has rarely been questioned. It is imperative to examine the reliability and validity of these studies, and how far their conclusions can be generalized. This research reexamined the data from two frequently cited studies conducted by Innocence Project groups, and corresponding response reports written by the state’s prosecutors’ associations who disputed the original findings. Because the majority of available research has been done by interest groups who have a vested stake in outcomes, this dissertation presents a re-analysis done by an objective reviewer using standard social science methodology. Specifically, this study examines of 99 California and 91 Texas appellate court cases included in two studies conducted by the Northern California Innocence Project and the Innocence Project Texas, as well as two response reports conducted by the California District Attorneys Association and the Texas District and County Attorneys Association, respectively. This research used three qualitative methodologies to examine the validity and reliability of the aforementioned studies, as well as to explore the phenomena of prosecutor misconduct and good faith error: ethnographic content analysis on 190 appellate cases, in-depth case studies of five specific Texas appellate cases, and interviews with 10 current and former prosecutors. Findings from the study reveal that the range and prevalence of prosecutor misconduct identified from the re-analysis of 190 cases was similar to the findings in the Northern California Innocence Project and Innocence Project Texas studies. Similarities included the rates of types of misconduct claims, the existence of more than one misconduct claim in many of the cases, and the rates of harmful error rulings. The types of prosecutorial misconduct or errors which were most commonly noted in the re-analysis of the 190 appellate cases included improper comments during closing arguments, eliciting improper testimony from a witness, and prejudicial statements made to the jury. Brady violations accounted for very few of the instance of misconduct (less than 6%), even though prosecutors identified Brady violations as the most common type of misconduct during the interviews. In the present study, judges overwhelmingly cited case law in reaching a decision regarding whether or not prosecutor misconduct had occurred. Only 20% of misconduct findings resulted in a conviction or sentence being overturned. Judges did not directly sanction prosecutors who were found to have committed misconduct, nor did they recommend in their written decisions that prosecutors should be sanctioned by an outside authority. Judges did admonish prosecutors in their written decision in 10% of the cases. Significant themes which emerged across the three studies included the lack of consistent language used by judges to identify misconduct and error, the lack of judicial concern with the intent of the prosecutor when assessing claims of misconduct, the significance of harmless error analysis in determining the legal consequences of misconduct, the role that lack of prosecutor training and experience plays in the occurrence misconduct, and the lack of agreement between appellate cases and prosecutors themselves regarding the prevalence of Brady violations. This study shows that appellate decisions, in and of themselves, are not suitable sources of data for identifying and policing prosecutor misconduct. It is difficult to identify the extent of misconduct from appellate cases for the purpose of sanctioning prosecutors because judges are often unclear regarding their findings of misconduct or error, or may not reach a decision regarding misconduct at all. Additionally, because harmless error analysis is used by judges to determine the outcome of prosecutor misconduct claims on appeal, the intent of the prosecutor is less important than the strength of the State’s case against a defendant in determining the consequences of misconduct. Consequently, distinguishing malicious misconduct from unintentional error is not often possible when using appellate decisions as the source of data. This study also highlighted the need for prosecutors to receive better training on the law and trial practice before being assigned felony or complex cases. The prosecutor culture may also contribute to the amount of misconduct and error occurring in a prosecutor agency. Finally, although prosecutors considered Brady violations to be the most common types of misconduct, they appeared in less than 10% of the appellate case decisions in the study. Additional research in this area is needed in light of recent open file laws, and in order to inform future training for prosecutors.



Prosecutor, Misconduct, Error, Brady


Hernandez, T. T. (2016). <i>Prosecutor misconduct and good faith error: A reanalysis of two studies in California and Texas</i> (Unpublished dissertation). Texas State University, San Marcos, Texas.


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