This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a subjective test as well. Part III discusses the use by some courts--although infrequently and inconsistently applied--of a subjective test to review a prosecutor's conduct, and analyzes the reasons that the subjective test is appropriate in all cases. Part IV attempts to rationalize the courts' use of a subjective test of a prosecutor's conduct. Part IV argues that a prosecutor's bad intentions are always relevant in analyzing a prosecutor's conduct, although not always necessary to a court's determination, and concludes that a prosecutor's wrongful intent invariably should be considered whenever evidence of a wrongful intent is available.
Bennett L. Gershman, Mental Culpability and Prosecutorial Misconduct, 26 Am. J. Crim. L. 121 (1998), available at http://digitalcommons.pace.edu/lawfaculty/129/.