Not so Pervasive as to Deprive the Defendant of a Fair Trial: Investigating the Willingness of Appellate Courts to Concede Prosecutorial Misconduct

An appeal to the higher courts by a convicted defendant is the major mechanism for the oversight and regulation of prosecutorial misconduct. In this way, appellate courts play an essential role in ensuring the fairness of criminal trials and in addressing misconduct by legal actors. Upon finding that the prosecutor erred, appellate courts conduct a harm analysis to assess the likely impact of the misconduct on the fairness of the trial and its outcome. Before this step, however, appellate judges must first evaluate the defendant’s claim(s) of prosecutorial misconduct and either concede that it occurred or reject the defendant’s assertions as unfounded. In this study, we examine each of the 93 appeals reviewed by New York’s higher courts in 2021 in which appellants alleged one or more types of prosecutorial misconduct. Using multilevel logit modeling to estimate appellate court concessions of misconduct, we find higher odds of concession when the alleged prosecutorial misconduct occurred at trial than when it occurred in pretrial proceedings. Little else affects whether higher courts concede defendants’ claims. This suggests that, apart from trial stage, the courts are not selectively conceding official misconduct in ways that allow them to declare the misconduct harmless.