Posted on January 8, 2019
Prosecutorial Error May Occur During Sentencing Proceedings
State v. Wilson, No. 114,567 (Kan. Dec. 14, 2018)
Issue: Under the 14th Amendment, a criminal defendant has a due process right to a fair trial. Can a prosecutor’s error, made outside the jury trial context, violate this due process right?
Answer: Yes, prosecutorial errors in non-jury-trial settings can violate due process.
Facts: In 2007, Wilson pled guilty to aggravated indecent solicitation of a child. In 2015, the State moved to correct his illegal sentence. At the hearing, the prosecutor erroneously told the judge that Wilson digitally raped and sodomized the victim—a fact unsupported by the record.
Discussion: The Kansas Supreme Court determined that State v. Sherman’s two-part analytical framework applies because the second prong’s focus—on the impact of the error on the outcome of the case—applies similarly in this nonjury setting as it does in the guilt and penal phases of bench and jury trials. Sherman requires a reversal whenever a prosecutor prejudices a defendant’s right to a fair trial by an act outside the his prosecutorial discretion.
The decision also highlights the Court’s recent move away from the term “prosecutorial misconduct.” The Court explained that this change in terminology was necessary because the focus should be on the error’s potential effect on the outcome of the case and not on the prosecutor’s professionalism or ethics.
State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016) (laying out the two-step analytical framework for prosecutorial error).