Prosecutorial Comments and Tactics - Another Look at a Continuing Problem

• NCJ Number: 79991
• Journal: Criminal Justice Quarterly Volume: 8 Issue: 1 Dated: (Spring/Summer 1981) Pages: 6-18
• Author(s): C M Henderson
• Date Published: 1981
• Length: 13 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Language: English
• Country: United States of America

Annotation

Comments made by prosecutors during cross-examination and opening and closing statements, which provoke the court's censure, are examined. Attention is given to remarks which infringe on a defendant's fifth amendment rights, concern the defendant's criminal record, may prejudice the jury, and relate to facts not in evidence.

Abstract

Based primarily on New Jersey cases, guidelines are given regarding the prosecutor's conduct. The most problematic area involves comments that may cast aspersions on a defendant's fifth amendment rights to not testify on his or her own behalf. Federal and State court decisions illustrate convictions which have been reversed on these grounds, although the propriety of a prosecutor's remarks in this area depends on the circumstances of each case. Prior adult convictions are used for the limited purpose of attacking a defendant's credibility. During summation, a prosecutor should refrain from calling the defendant any name that might inflame a jury, informing the jury that it has a right to convict, or using a defendant's poverty to show a propensity to commit crime. A prosecutor must confine arguments in the closing statement to evidence presented in the trial and reasonable inferences that can be drawn from this information. Examples of convictions reversed by State courts because the prosecutor's summation was considered improper and prejudicial are described. A prosecutor should never address jurors individually, refer to their religious beliefs, or tell the jury that the trial judge ruled a confession statement was voluntary. In cases where prosecutors wish to comment on the defendant's failure to produce a witness, they must first inform the judge and defense counsel of their intention. During summation, the prosecutor is entitled to respond to allegations and arguments raised by the defense counsel's summation, as long as the remarks are based on evidence and testimony introduced at the trial. The prosecutor may also comment on the fact that the conduct of some defense witnesses is inconsistent with their testimony at trial. Approximately 120 footnotes are included.