18.57 - G. Avoiding The Commission Of Reversible Error By Making Improper Comments

• Jurisdiction: New York

G. Avoiding the Commission of Reversible Error by Making Improper Comments

The prosecutor should never express his personal belief or opinion as to the guilt or innocence of the defendant,²⁸³⁹ the truthfulness of the defendant’s own testimony²⁸⁴⁰ or that of any witness,²⁸⁴¹ or the legality or propriety of any defense raised by the defendant.²⁸⁴²

Arguments calling for the conclusion that the defendant is guilty should always be phrased in appropriate language such as, “The testimony of these witnesses and the evidence clearly shows that . . .”²⁸⁴³ or “The evidence warrants the conviction.”²⁸⁴⁴

When advancing arguments as to the credibility (or lack thereof) of witnesses, one should use such permissible language as, “I submit to you that Mr. Witness’s testimony rings with truth because of the logic of the facts”²⁸⁴⁵ or, “I submit to you that you can reject the testimony of the defendant’s witness if your common sense and good judgment tell you that, based on all the evidence you’ve heard, he has a motive to shade the truth.”²⁸⁴⁶ The U.S. Supreme Court has found a constitutionally favorable difference between a prosecutor’s summation comments concerning only a defendant’s credibility as a witness and forbidden comments suggesting that a defendant’s silence at trial is evidence of guilt. “Allowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate—and indeed, given the inability to sequester the defendant, sometimes essential—to the central function of the trial, which is to discover the truth.”²⁸⁴⁷

The prosecutor should never use arguments that call for the case to be decided based upon his own personal veracity, integrity, honesty, reputation or knowledge of the facts of the case.²⁸⁴⁸ He or she should never discuss any aspect of the sentencing process,²⁸⁴⁹ the possibility of appellate review of the verdict²⁸⁵⁰ or any plea negotiations that may have taken place before or during the trial.²⁸⁵¹

It is never permissible to comment on the defendant’s failure to make a statement to police after his arrest²⁸⁵² or to testify at the trial.²⁸⁵³ One should never attack the defendant²⁸⁵⁴ or the defense attorney personally.²⁸⁵⁵

It is always impermissible to comment on evidence that has not been formally introduced into evidence²⁸⁵⁶ or that has been excluded.²⁸⁵⁷

Since the defendant is under no legal obligation to present a defense, the People may not comment on his failure to call witnesses or produce evidence, or imply that the defendant has any burden to prove anything (aside from those few cases involving affirmative defenses).²⁸⁵⁸ Similarly, one should never imply that the People’s burden of proof has been met by anything other than the evidence introduced at the trial. For example, the legal value of the indictment should not be exaggerated to the extent of giving the jury the impression that the grand jury has already adjudged the defendant guilty as charged.²⁸⁵⁹

In commenting on the concepts of reasonable doubt and the presumption of innocence, the prosecutor should limit remarks to those stressing that the evidence presented has overcome the presumption and met the People’s burden of proof. He or she should not suggest that the presumption does not apply to the defendant²⁸⁶⁰ or imply that the jury would be stupid, weak or gullible if it found a reasonable doubt.²⁸⁶¹

Arguments designed to inflame the passions or arouse the prejudices of jurors should never be used.²⁸⁶² One should never issue a clarion “call to arms” to get all criminals off the street, or request that the jurors put themselves in the place of the victim (any more than one should let the defense get away with an obvious pitch for sympathy by asking the jurors to put themselves or their family members in the place of the defendant).²⁸⁶³

“In every circuit, conduct that would otherwise be improper may be excused under the ‘invited reply’ doctrine if the prosecutor’s conduct was an appropriate response to statements or arguments made by the defense.”²⁸⁶⁴

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Notes:

^[2839] . United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); People v. Montgomery, 21 A.D.2d 904, 252 N.Y.S.2d 194 (2d Dep’t 1964), aff’d, 15 N.Y.2d 732, 256 N.Y.S.2d 942 (1965); People v. Crimmins, 41 A.D.2d 933, 343 N.Y.S.2d 203 (2d Dep’t 1973), aff’d in part and rev’d in part, 38 N.Y.2d 407, 381 N.Y.S.2d 1 (1975); People v. La Fontaine, 39 A.D.2d 734, 332 N.Y.S.2d 57 (2d Dep’t 1972); People v. Wade, 35 A.D.2d 401, 317 N.Y.S.2d 122 (3d Dep’t 1970); People v. Nicoll, 3 A.D.2d 64, 158 N.Y.S.2d 279 (4th Dep’t 1956); People v. Mantesta, 27 A.D.2d 748, 277 N.Y.S.2d 442 (2d Dep’t 1967).

^[2840] . People v. Goggins, 64 A.D.2d 717, 407 N.Y.S.2d 531 (2d Dep’t 1978); People v. Bennett, 65 A.D.2d 801, 410 N.Y.S.2d 304 (2d Dep’t 1978).

^[2841] . People v. Alexander, 94 N.Y.2d 382, 705 N.Y.S.2d 551 (1999) (holding that prosecutor’s argument that intraracial identifications are “more reliable” was not harmless error); People v. Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680 (1978); People v. Bailey, 58 N.Y.2d 272, 460 N.Y.S.2d 912 (1983); People v. Hickman, 34 A.D.2d 831, 312 N.Y.S.2d 644 (2d Dep’t 1970); People v. Blackman, 43 A.D.2d 742, 350 N.Y.S.2d 715 (2d Dep’t...