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POSSIBLE ISSUES FOR REVIEW IN CRIMINAL APPEALS

PROSECUTORIAL MISCONDUCT

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PROSECUTORIAL MISCONDUCT: Prosecutorial misconduct can take many forms, intimidating potential defense witnesses, commenting on a defendantís silence, or attacking defense counsel during closing argument. If the prosecution engages in unfair tactics appellate counsel should raise the issue on appeal.

 

The "purpose of an opening statement is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole." United States v. Hall, 165 F.3d 1095 (7th Cir. 1999)(quoting Testa v. Village of Mundelein, Ill., 89 F.3d 443, 445 (7th Cir. 1996)).

 

In opening statements, it would be a "rare situation where it would be appropriate for a prosecutor to comment on anticipated defense evidence because a defendant is under no obligation to put forward evidence on his or her own behalf." United States v. Hall, 165 F.3d 1095 (7th Cir. 1999).

 

It is reversible error when prosecutor intentionally forces own witness to invoke witnessesí Fifth Amendment privilege against self-incrimination, resulting in an unfavorable inference against the defendant. Harmon v. McVicar, 95 F.3d 620, 624 (7th Cir. 1996).

 

Showing that prosecutorís introduction of false testimony need not rise to the level of constitutional violation on direct appeal; it is enough that the jury may have reached a different verdict absent the false testimony or if the jury had known the testimony was false. United States v. Catton, 89 F.3d 387, 389 (7th Cir. 1996).

 

Prosecutorís misstatements of fact in closing argument, and the false testimony by his witness, require a new trial only if they were prejudicial. United States v. Catton, 89 F.3d 387, 389 (7th Cir. 1996).

 

Prosecutorial errors are weighed jointly. United States v. Catton, 89 F.3d 387, 389 (7th Cir. 1996).

 

Although any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded (Fed.R.Crim.P. 52(a)), the defendant prevails when the effect of the error is a close question. United States v. Talbott, 78 F.3d 1183, 1188 (7th Cir. 1996).

 

The court employs a two part test for assessing whether prosecutorial remarks are improper. First a court looks to determine whether the comments, looked at in isolation, were improper. If the remarks were improper, the court then looks at the remarks in the light of the entire record to determine whether the defendant was deprived of a fair trial. United States v. Cusimano, 148 F.3d 824, 831 (7th Cir. 1998).

 

If prosecutorsí remarks are found to be improper, a five-factor evaluation of the misstatements determines if the prosecutorís improper comments deprived the defendant of a fair trial: 1) the nature and seriousness of the misconduct; 2) the extent to which the comments were invited by the defense; 3) the extent to which any prejudice was ameliorated by the courtís instruction to the jury; 4) the defenseís opportunity to counter any prejudice; and 5) the weight of the evidence supporting the conviction. United States v. Cusimano, 148 F.3d 824, 831-32 (7th Cir. 1998) (citing United States v. Granados, 142 F.3d 1016, 1021-22 (7th Cir. 1998)); United States v. Kelly, 991 F.2d 1308, 1315 (7th Cir. 1993)(citing Darden v. Wainright, 477 U.S. 168, 182 (1986)).

 

The Seventh Circuit has stated that there is a sixth factor in evaluating whether a prosecutorís improper comments deprived defendant of a fair trial, namely whether the defendant had an opportunity to rebut the prosecutorís comments. Swofford v. Dobucki, 137 F.3d 442, 445 (7th Cir. 1998)(citing Darden v. Wainwright, 477 U.S. 168, 181-82 (1986) and referring to United States v. McClinton, 135 F.3d 1178, 1188-89 (7th Cir. 1998)).

 

The six factors are not the only relevant considerations in assessing the fairness of the defendantís trial; they are only helpful guides in answering the

ultimate question of "whether the prosecutorís comments Ďso infected the trial with unfairness as to make the resulting conviction a denial of due process.í" Swofford v. Dobucki, 137 F.3d 442, 445 (7th Cir. 1998)(citing Darden v. Wainwright, 477 U.S. 168, 181-82 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

 

Review of improper remarks in closing argument: abuse of discretion. United States v. Lovelace, 123 F.3d 650, 654-655 (7th Cir. 1997), cert. denied, __S.Ct.__, 1997 WL 810719 (1998)).

 

Under "invited response" doctrine, prosecutor may make reasonable but otherwise improper response to improper defense argument. United States v. Johnson-Dix, 54 F.3d 1295, 1305 (7th Cir. 1995).

 

The issue on appeal under the "invited response" doctrine is whether the prosecutorís invited response taken in context unfairly prejudiced the

defendant. United States v. Johnson-Dix, 54 F.3d 1295, 1305 (7th Cir. 1995).

 

Test to determine whether prosecutorial misconduct was harmless: trial is viewed as a whole and Court of Appeals reviews strength of prosecutionís case, whether curative instruction was given to jury, whether improper details were argued to jury during prosecutionís closing argument, and length and complexity of trial. United States v. Robinson, 8 F.3d 398, 411 (7th Cir.1993).

 

The trial court may exercise broad discretion in controlling closing arguments and in ensuring that argument does not stray unduly from the mark. United States v. Wables, 731 F.2d 440, 449 (7th Cir. 1984).

 

To assess allegations of improper vouching in closing argument, the Court of Appeals first considers the prosecutorís remarks in isolation. If the remarks are improper in the abstract, the Court of Appeals then reviews them in the context of the entire record and asks whether they denied the defendant a fair trail. United States v. Alexander, 163 F.3d 426 (7th Cir. 1998)(United States v. Johnson-Dix, 54 F.3d 1295,

1304 (7th Cir.)).

 

In reviewing allegations of improper vouching, the Court of Appeals evaluates several factors: (1) the nature and seriousness of the statement; (2) whether the defense counsel invited it; (3) whether the district court sufficiently instructed the jury to disregard it; (4) whether defense counsel had the opportunity to respond to the improper statement; and (5) whether the weight of the evidence was against the defendant. United States v. Alexander, 163 F.3d 426 (7th Cir. 1998).

 

Review of the denial of a motion for new trial on the grounds of improper vouching: abuse of discretion. United States v. Alexander, 163 F.3d 426 (7th Cir. 1998).

 

Griffin error (comment on defendantís failure to testify):

A prosecutorís direct reference to a defendantís failure to testify violates the defendantís privilege against compelled self-incrimination. Griffin v.

California, 380 U.S. 609 ( 1965).

 

Griffin violation is reviewed using a two-step analysis: the prosecutor must have made improper remarks and, in light of the entire record, the remarks must have deprived the defendant of a fair trial. United States v. Senn, 129 F.3d 886 (7th Cir. 1997); See also United States v. Butler, 71 F.3d 243, 254 (7th Cir. 1995).

 

The Fifth Amendment forbids direct "comment by the prosecution on the accusedís silence or instructions by the court that such silence is evidence of guilt." United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)(quoting Griffin v. California, 380 U.S. 609, 615 (1985)).

 

The Fifth Amendment also prohibits indirect commentary on the defendantís decision not to testify. United States v. McClellan, 165 F.3d 535 (7th Cir. 1999).

 

Indirect comment on the defendantís decision not to testify occurs where the government characterizes its offer of evidence of as "uncontradicted",

"undenied", "unrebutted", "undisputed", "unchallenged", or "uncontroverted" and the only person capable of contradicting, denying, rebutting, disputing, challenging, or controverting the evidence at issue is the defendant. United States v. McClellan, 165 F.3d 535 (7th Cir. 1999).

 

Interference with attorney-client relationship:

If prosecutorial misconduct denies defendant right of counsel or any other fundamental right of a criminal defendant, including the right to an impartial judge or to trial by jury, it is reversible error regardless of whether it was prejudicial or harmless. United States v. DiDomenico, 78 F.3d 294, 299 (7th Cir.), cert. denied, 117 S.Ct. 507 (1996).

 

When prosecutorís closing argument was a constitutional violation (in this case, indirect comment on defendantís failure to testify and improperly

vouching for prosecution witnesses), prosecution must prove beyond a reasonable doubt that defendant would have been convicted absent prosecutorís unconstitutional remarks. United States v. Cotnam, 88 F.3d 487, 499-500 (7th Cir.), cert. denied, 117 S.Ct. 326 (1996).

 

Improper "prosecutorial remarks standing alone cannot justify a new trial unless they Ďundermined the fairness of the trial and contributed to a miscarriage of justice.í" United States v. Hall, 165 F.3d 1095 (7th Cir. 1999)(quoting United States v. Young, 470 U.S. 1, 16 n. 14 (1985) and citing United States v. Mealy, 851 F.2d 890, 903 (7th Cir. 1998)(recognizing that "even if the prosecutor engaged in improper conduct, we

must re-examine the improper remark in light of the entire record to determine whether the remark deprived the defendant of a fair trial.")).

 

The Seventh Circuit will not "lightly overturn a conviction Ďon the basis of a prosecutorís comment standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutorís conduct effected the fairness of the trial.í" United States v. Hall, 165 F.3d 1095 (7th Cir. 1999)(quoting United States v. Saadeh, 61 F.3d 510, 521 (7th Cir. 1995)(quoting United States v. Young, 470 U.S. 1, 11 (1985)).

 

To determine whether a prosecutorís remarks amount to prejudicial error, a court "must consider the probable effect the prosecutorís behavior would have on the juryís ability to judge the evidence fairly." United States v. Hall, 165 F.3d 1095 (7th Cir. 1999)(quoting United States v. Young, 470 U.S. 1, 12 (1985)).

 

Prosecutorís comments to jury during closing arguments were improper in that they appealed to jurorsí emotions and invited the jury to consider the social consequences of its verdict: prosecutor improperly put the jurors in the citizen witnessí place by asking how the jurors would feel if the jurors were called liars when they attempted to help in the apprehension and prosecution of the defendant. The prosecutor also implied that if the jury disbelieved the citizen witness, people would be more reluctant to come forward to testify for fear that they too would be called liars. United States v. Morgan, 113 F.3d 85, 90 (7th Cir. 1997). Prosecutorial vindictiveness: See VINDICTIVE PROSECUTION  

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