Prosecutorial misconduct in the military context covers a range of conduct, from improper discovery practices to knowing use of false evidence to interference with the accused’s right to counsel. When misconduct occurs during the investigation phase, before charges are even preferred, the defense faces the challenge of identifying it early enough to raise it effectively and building a record that survives the rigorous standard courts apply before dismissing charges as a remedy.
Courts are reluctant to dismiss charges based on prosecutorial misconduct unless the misconduct was severe, prejudicial, and not adequately addressed by a less drastic remedy. The threshold is high by design, because dismissal deprives the government of the ability to seek accountability for an offense. But the standard is not insurmountable, and cases exist where misconduct during the investigative phase contributed to dismissal. The key is identifying the conduct, documenting it carefully, and presenting it through the appropriate procedural vehicle.
What Qualifies as Prosecutorial Misconduct in Military Law
Prosecutorial misconduct in the military justice context encompasses a range of conduct that violates the Rules of Professional Conduct applicable to judge advocates, the UCMJ, or the specific procedural rules governing courts-martial. The most serious categories involve intentional wrongdoing: knowingly using false evidence, deliberately withholding exculpatory material in violation of the discovery rules, coaching witnesses to provide false or misleading testimony, or making arguments to the panel that the attorney knows to be false.
Less severe categories also qualify as misconduct even without specific intent. A prosecutor who fails to disclose impeachment material without recognizing the obligation to do so, who makes improper argument through negligence rather than design, or who fails to correct false testimony offered by a government witness has engaged in conduct that the court must assess under the applicable standards. The distinction between intentional and negligent misconduct affects the available remedies but does not determine whether misconduct occurred. Both categories require the court’s attention when they are raised through a timely motion.
The Threshold for Dismissal as a Remedy for Misconduct
Dismissal as a remedy for prosecutorial misconduct requires the defense to establish that the misconduct was so severe and so prejudicial that no lesser remedy can adequately cure the harm to the accused’s right to a fair trial. Courts applying this standard consider the nature and severity of the misconduct, the intent behind it if determinable, the degree to which it affected the evidence available to the defense or to the factfinder, and whether any less drastic remedy such as exclusion of tainted evidence, a curative instruction, or a continuance could adequately address the prejudice.
The cases where dismissal has been granted involve conduct at the most serious end of the spectrum: the deliberate suppression of material exculpatory evidence, knowing use of perjured testimony, or systematic interference with the accused’s constitutional rights in ways that infected the entire proceeding. Negligent misconduct, even when prejudicial, is less likely to produce dismissal than intentional wrongdoing, though it remains subject to other remedies that can significantly affect the outcome.
How Courts Balance Dismissal Against Less Drastic Remedies
Courts explicitly weigh dismissal against less drastic alternatives before granting the most severe sanction. A court that finds discovery misconduct will first assess whether the missing evidence can still be produced and whether a continuance would allow the defense adequate time to use it. A court that finds improper argument will first consider whether a curative instruction adequately addresses the damage. A court that finds witness coaching will consider whether the witness can be disqualified or whether the coaching affected the testimony enough to require more drastic action.
The defense that wants dismissal must affirmatively argue why less drastic remedies are inadequate. That argument requires identifying specifically how the misconduct affected the case and explaining why the proposed alternative remedy does not adequately address that effect. A motion that simply asks for dismissal without engaging with the adequacy of alternatives is unlikely to succeed because the court will independently consider alternatives before granting the most drastic remedy available.
Documenting Misconduct From the Earliest Stage of the Case
Effective prosecution misconduct claims begin with documentation at the moment the conduct is identified. Defense counsel who identify potential misconduct during the investigation phase should document every instance: the date and circumstances of each event, the specific nature of the conduct, the witnesses or records that can corroborate it, and the effect it had on the defense’s ability to prepare. This contemporaneous documentation becomes the factual foundation for any motion that is filed before or during trial.
Discovery requests filed early and followed up consistently create a record of what was requested and when, which is essential for demonstrating that the government was obligated to produce specific material and failed to do so. Preservation letters, requests for litigation holds, and specific follow-up demands for overdue discovery all generate the paper record that makes a misconduct motion factually persuasive rather than speculative. The attorney who documents consistently from the beginning of the case is in a far stronger position than one who tries to reconstruct the history of misconduct from memory after the fact.
Preserving Misconduct Claims Through Trial and Into Appeal
Misconduct claims that are not preserved through timely, specific objection at trial are reviewed on appeal under the much more demanding plain error standard rather than the de novo or abuse of discretion standards that apply to preserved claims. A defense attorney who identifies prosecutorial misconduct during trial and fails to object promptly and specifically has made it significantly harder to prevail on that issue on appeal.
Preservation requires more than a general objection. It requires a specific identification of the conduct at issue, a specific statement of the legal basis for the objection, and in many cases a specific request for the remedy sought. A record that clearly shows the defense identified the misconduct, objected on specific grounds, and requested a specific remedy gives the appellate court everything it needs to evaluate the claim and to grant meaningful relief if the trial court erred in overruling the objection.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.