Regulating Prosecutors’ Courtroom Misconduct
Trial prosecutors’ visible misbehavior, such as improper questioning of witnesses and improper jury arguments, may not seem momentous. Sometimes, the improprieties are simply the product of poor training or overenthusiasm. In many cases, they pass unremarked. As the Chicago Eight trial illustrated, trial prosecutors’ improprieties may also be overshadowed by the excesses of other trial participants—the witnesses, the defendants, the defense lawyers, or even the trial judge. And when noticed, prosecutors’ trial misbehavior can ordinarily be remedied, and then restrained, by a capable trial judge. It is little wonder that disciplinary authorities, having bigger fish to fry, are virtually indifferent to the problem. And yet, in the obvious absence of disciplinary regulation, prosecutors and their offices have less motivation to play by the rules.
The challenge for disciplinary regulation is to find a proportional response to trial misconduct—one that does not punish prosecutors undeservedly, unnecessarily, or too harshly but that nevertheless serves regulatory ends. Building on the Supreme Court’s observation that a prosecutor’s repeated improprieties should be met with “stern rebukes,” this Article proposes that prosecutorial improprieties that are deserving of judicial rebuke should not be forgotten. Rather, repositories—or rebuke banks—should be maintained to preserve transcripts of prosecutors’ on-the-record misconduct, even when it is committed unintentionally. Maintaining these records, which would be relatively easy in the computer age, would serve salutary regulatory ends while maintaining the necessary sense of proportionality.