Official Misconduct

Official misconduct, including police and prosecutorial misconduct, was a contributing factor in 47% of exonerations since 1989¹ and is a leading cause of wrongful convictions. Police misconduct can include suggestive eyewitness identification procedures, coercive interrogations, failure to provide prosecutors with exculpatory evidence (evidence pointing to a defendant’s innocence), misleading jurors, and providing incentives for unreliable evidence from informants. Prosecutorial misconduct can include withholding exculpatory evidence, allowing false testimony, pressuring defense witnesses not to testify, making misleading arguments, and mishandling or destroying evidence.

A Sample Case

NCIP exoneree Obie Anthony III spent 17 years in prison for a wrongful conviction involving prosecutorial misconduct. In 1995, Mr. Anthony was convicted of murder and attempted robbery. There was no physical or forensic evidence connecting Anthony to the murder. Prosecutors relied on the testimony of John Jones, a convicted killer and pimp who ran a house of prostitution near the scene of the crime, who claimed to have seen the shooter. In exchange for his testimony incriminating Anthony, the prosecutor granted John Jones favorable treatment on a pimping and pandering charge. At trial, when Jones was asked whether he received any benefits for testimony, Jones perjured himself by saying he was not receiving any benefits. The prosecutor’s office was aware that Jones had presented perjured testimony and failed to inform the court or the defense of this fact. Anthony’s conviction was vacated on September 30, 2011 after a finding of prosecutorial misconduct, false testimony, and ineffective assistance of counsel. Anthony was exonerated on October 4, 2011.

Policy Reform

Statewide criminal justice commissions can assess official misconduct and recommend reforms to hold wrongdoers accountable and prevent official misconduct in the future. Eleven states, including California, have formed such commissions. In 2008, a report by the California Commission for the Fair Administration of Justice recommended that prosecution and law enforcement agencies implement policies to comply with Brady (which requires disclosure of evidence favorable to a defendant) and conduct training to ensure policies are followed. The report also recommended mechanisms to increase reporting when misconduct occurs.² Many of these recommendations have not been implemented.

In 2010, NCIP released a report on prosecutorial misconduct in California based on a comprehensive review of over 4,000 state and federal appellate rulings, revealing 707 cases in which courts found that prosecutors had committed misconduct. The report also found that in the vast majority of cases, courts failed to report the misconduct despite their obligation to do so.³ In 2015, California passed Assembly Bill 1328, authored by Assembly member Shirley Weber, which requires a court, upon finding that a prosecutor deliberately withheld Brady evidence, to inform the State Bar of that violation, if the prosecutor acted in bad faith.

A 2016 study of the costs associated with 692 wrongful convictions, errors and failed prosecutions in California between 1989 and 2012 found that prosecutorial misconduct was the most costly error associated with these problematic convictions and prosecutions.⁴ Recommended reforms include creating statewide standards for open file discovery, which would give the defense access to the prosecutor’s full case file. Other recommendations include allowing civil litigation against prosecutor’s offices that have engaged in misconduct; reducing absolute immunity so prosecutors who intentionally withhold evidence are held accountable; increasing State Bar involvement in investigating and disciplining violators; and creating a statewide commission on prosecutorial misconduct.

¹ See The National Registry of Exonerations. “% Exonerations by Contributing Factor.” Accessed on 3/10/16.
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² California Commission on the Fair Administration of Justice: Final Report. Santa Clara, CA: California Commission on the Fair Administration of Justice, 2008, p. 75, 90.

³ See Ridolfi, Kathleen et al. Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009. Santa Clara, CA: Northern California Innocence Project, 2010, p. 78.
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⁴ Silbert, Rebecca et al. “Criminal (In)justice: A Cost Analysis of Wrongful Convictions, Errors and Failed Prosecutions in California’s Criminal Justice System.” Faculty Scholarship Paper 1635. Philadelphia, PA: UPenn School of Law, 2016.
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