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