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Prosecutorial Misconduct and Mistrials

Document Type

Article

Publication Date

2022

Publication Title

ABA Criminal Justice

Abstract

The murder case against Kyle Rittenhouse for killing two men and wounding a third during the 2020 protests in Kenosha, Wisconsin, nearly came to an early end when the lead prosecutor’s questioning of Rittenhouse angered the judge. During cross-examination of Rittenhouse, the prosecutor mentioned evidence the judge had ruled inadmissible and questioned Rittenhouse about his silence before the trial in violation of Rittenhouse’s right to remain silent. The defense accused the prosecutor of misconduct and requested a mistrial with prejudice, which would have precluded a retrial. The judge denied the request. When does prosecutorial misconduct cause a mistrial? When it does, is retrial possible? Or is retrial barred, resulting in the dismissal of the charges? If retrial is barred, the mistrial is said to be 'with prejudice'. In this column, we analyze the legal and ethical aspects of prosecutorial misconduct that results in a mistrial. We also examine the reasoning and factors courts use in deciding whether to allow a retrial after such misconduct.

Keywords

Legal Ethics, Professional Responsibility, Prosecutorial Misconduct, Mistrial

Publication Citation

Peter A. Joy & Kevin C. McMunigal, Prosecutorial Misconduct and Mistrials, 37 ABA Criminal Justice 56 (2022).

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