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Prosecutorial Misconduct

What is prosecutorial misconduct?  Improper remarks during trial, failure to disclose exculpatory evidence and knowing use of perjured testimony are just a few examples.  Sometimes, a prosecutor’s misconduct amounts to grounds for reversible error under Ohio Revised Code 2945.79 (R.C. 2945.79).


What comments can give rise to prosecutorial misconduct?  The following examples are remarks that can deprive the defendant of a fair trial:


  1. Adversely commenting on a defendant’s failure to testify at trial.
  2. Use of a defendant’s silence before or after arrest as substantive evidence of guilt.
  3. Unfair or derogatory personal references to defense counsel during trial.


A single comment may not be enough to overturn a conviction.  For example, the prosecutor is entitled to a certain degree of latitude in closing argument.  The Ohio Supreme Court has held that a single comment in an otherwise properly tried case amounts to an isolated incident that does not necessarily deprive the accused of the right to a fair trial.  The United States Supreme Court summed it up when it said that the prosecutor may strike hard blows at trial, but may not strike foul ones.


Failure to disclose exculpatory evidence could constitute prosecutorial misconduct.  What is exculpatory evidence?  Exculpatory evidence is evidence that is favorable to the accused.  The prosecutor cannot withhold evidence simply because he or she does not like the evidence.  Failure to turn such evidence over to the defense is often called a Brady violation.


To read more about criminal law issues, click on my other criminal law articles: Miranda warnings in Ohio, can Ohio police pull you over when you are not doing anything wrong, can a person’s tip get you arrested in Ohio, can you agree to a search in Ohio, can Ohio police break into your home if they are in hot pursuit, can Ohio police stop you just to help you, factors affecting an agreed sentence in Ohio, Ohio reduces maximum prison terms for some offenses, ways to avoid going to jail in Ohio, jail time credit in Ohio, fleeing Ohio can give the prosecutor more time to charge you with more crimes, police can search your garbage in Ohio, can you be arrested for defaulting on payday loans, debtors’ prison outlawed in Ohio, and expunging convictions in Ohio. I have successfully defended individuals for both misdemeanor and felony offenses, as set forth in the case highlights section.


Attorney Gigiano is a Medina criminal trial attorney in Wadsworth, Ohio.  If you have questions about this or other questions you need answered by an experienced Wooster criminal trial lawyer near Orrville or a Stark County criminal trial lawyer near Massillon, please call Attorney Daniel F. Gigiano at 330-336-3330.  As a result of his aggressive dedication to his client’s interests, Daniel Gigiano’s reviews in numerous websites are well-received, and his work is documented in several articles and links.