Abstract
Prosecutorial misconduct during trial—particularly improper questioning of witnesses and improper argument—occurs in front of the jury and directly shapes its deliberations. Yet appellate courts routinely dismiss such misconduct as “harmless error,” allowing convictions to stand even when prosecutors violate defendants’ rights. This Article contends that the harmless error framework both underestimates the impact of misconduct on jurors and undermines the Constitutional guarantee of a fair trial. It proposes that certain instances of misconduct that occur during trial should be classified as structural error, requiring automatic reversal. This would protect defendants’ right to a fair trial and maintain the integrity of the judicial system. Most importantly, it would provide a much-needed remedy when violations occur.
Recommended Citation
Jennifer Brinkman,
Harmless in Name Only: Prosecutorial Misconduct and the Right to a Fair Trial,
32 Wash. & Lee J. Civ. Rts. & Soc. Just. 467
(2026).
Available at: https://scholarlycommons.law.wlu.edu/crsj/vol32/iss2/5
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