A criminal prosecutor plays a dual role. Although operating within an adversary system, the prosecutor’s duty is to seek justice, not merely to obtain a conviction. The prosecutor represents all the people, including the defendant. The prosecutor has an obligation to protect the innocent as well as convict the guilty and to guard the rights of all, including the accused. As such, the prosecutor has a duty to refrain from legally objectionable tactics calculated to arouse the prejudices of the jury.8 Prosecutorial misconduct runs the risk of a mistrial with the loss of the right to retry the case because of the constitutional prohibition against double jeopardy, the grant of a motion for a new trial or reversal of a conviction on appeal.9
8. Spence v. State, 129 A.3d 212, 224 (Del. 2015); Kirkley v. State, 41 A.3d 372, 376-77 (Del. 2012); Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004), cert. denied, 544 U.S. 928 (2005); Cole v. State, 922 A.2d 354, 360 (Del. 1996); Trump v. State, 753 A.2d 963, 967 (Del. 2000); Marine v. State, 624 A.2d 1181, 1191 (Del. 1993); Brokenbrough v. State, 522 A.2d 851, 855-56 (Del. 1987); Hughes v. State, 437 A.2d 559, 566 (Del. 1981); Hooks v. State, 416 A.2d 189, 204 (Del. 1980); Sexton v. State, 397 A.2d 540, 544 (Del. 1979); Bennett v. State, 53 Del. 36, 164 A.2d 442, 446 (Del. 1960).
9. Appellate review of prosecutorial misconduct is beyond the scope of this book.
© 2016 David L. Finger