In 1935, roughly 85 years ago, the U.S. Supreme Court in Berger v. United States made this oft-quoted observation about a prosecutor’s duty to conduct themselves in a fair, impartial, and most importantly an ethical manner in a criminal trial:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor- indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to provide a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Prosecutorial Misconduct in Closing Argument is Often Risk Free
Five years before Berger the famed jurist Roscoe Pound expressed the fear that prosecutorial misconduct would become a permanent fixture in the American criminal justice system. His 1930 fear is today’s 2019 reality. Just last year in an Oklahoma Law Review piece titled “Combating Prosecutorial Misconduct in Closing Argument,” prominent criminal defense attorney Michael Cicchini wrote that:
“Prosecutors abuse the closing argument process for two primary reasons. First, they know that improper arguments are highly effective, stirring jurors’ emotions and inviting them to convict for reasons other than proof beyond a reasonable doubt. Second, and equally important, prosecutors have learned that this form of misconduct is virtually risk free: the difficulty defense lawyers face in quickly identifying and immediately responding to improper arguments typically results in the prosecutor’s misconduct going unchecked and the state gaining an illegal advantage without repercussion. Moreover, even when the defense lawyer is able to quickly identify and object to the misconduct, doing so may cause more harm than good. Further, the available remedies are often ineffective.”
The courts have long been reluctant to address prosecutorial misconduct in closing arguments. This was made clear in a sharp 1946 dissenting opinion by Judge Jerome Frank in a Second Circuit Court of Appeals case:
“This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable …. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it…. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court-recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary.”
Improper Argument Rampant and Pervasive
This reluctance by the courts to adequately address prosecutorial misconduct has made the unethical practice both rampant and pervasive in our criminal justice system.
Writing in the Seattle University School of Law Digital Commons in 2015, law professor Mary Bowman cited a 2010 study by the Northern California Innocence Project that identified 700 instances of prosecutorial misconduct over a 12-year period and a 2008 study by the Center for Public Integrity found more than 11,000 cases in which appellate courts addressed prosecutorial misconduct. Those appellate courts either reversed or imposed some lesser form of relief in just 2,000 of those cases. In hundreds of more cases in which prosecutorial misconduct was found, the courts casually dismissed those cases as “harmless” errors not warranting any relief.
Professor Bowman pointed to two additional studies that exemplified the reluctance of appellate courts to address prosecutorial misconduct. One study showed that Louisiana courts reversed convictions secured by prosecutorial misconduct in just 13.3 percent of the cases while California courts had an even lower reversal rate of 12 percent.
In a May 2012 post, we similarly pointed out that prosecutorial misconduct goes unpunished in Texas as well. The situation has not gotten any better. Just last year State Prosecuting Attorney Stacey Soule told the Texas Legislature’s House Criminal Jurisprudence Committee that in the previous 12 months the Texas Court of Criminal Appeals had reversed only four convictions involving prosecutorial misconduct. She used those reversals as evidence that prosecutorial misconduct is now “less prevalent” in the state’s “criminal justice system” when in fact nothing could be further from the truth.
Attorney Cicchini offered this list of unethical behaviors prosecutors engage in during closing arguments which are generally excused by appellate courts:
- Improper comments on the defendant’s decision not to testify;
- Liar, Liar (and other Name Calling);
- Disparaging the Defense Lawyer;
- Vouching for prosecution witnesses and indirectly offering personal opinions about a defendant’s guilt by attesting to the truthfulness of prosecution witnesses;
- Prosecutor offering testimony by making arguments they know to be false;
- Misstating the Law, such as wrongly identifying the jury’s duty;
- Straw man arguments—the process of making an argument and attributing the argument to defense counsel, telling the jury the argument is invalid and, therefore, they should convict;
- Sweet Emotion—an improper emotional appeals to secure a conviction, such as invoking sympathy for the victim, instilling fear for failure to convict, or pandering to a jury’s biases and prejudices; and
- Uninvited Responses—process of using rebuttal arguments to argument that any improper argument they may have made in closing was “invited” by defense counsel and, therefore, are justified.
Defending in a criminal trial is a difficult task under any circumstances. That task is made more difficult when prosecutorial misconduct infects the trial process.
Pretrial Preparation Essential to Prevent Improper Argument
If defense counsel knows that the prosecutor in the case has a propensity for misconduct, or if defense counsel suspects the prosecutor may engage in misconduct, they should file a pretrial motion in limine seeking an advanced ruling from the trial judge to prevent the prosecutor from engaging in certain improper conduct and/or arguments. Such a motion can be premised on the argument that having to object during the trial at the moment of occurrence draws more jury attention to the misconduct before the jury.
Even if defense counsel secures an advanced preclusion of misconduct through a motion in limine, they must nonetheless listen intently to the prosecution’s closing argument to recognize any of the above examples of misconduct. Timely and proper objections must be made to prosecutorial misconduct at any stage of the trial proceedings, but this rule is particularly more applicable during closing arguments.
Prosecutorial misconduct should never be allowed to go unchecked, regardless of the stage of the trial.
The simple truth is this: prosecutors engage in misconduct because they know, more often than not, they can get away with it. It is the defense attorney’s job to make sure they do not get away with it unnoticed.