18-E Criminal


E. Criminal


Vouching, usually occurring during closing argument, is a form of prosecutorial misconduct whereby the prosecutor suggests information through facts not in evidence. State v. Payne, 233 Ariz. 484, 511, 314 P.3d 1239, 1266 (2013). A prosecutor impermissibly vouches for a witness by placing the prestige of the government behind its witness or suggesting that information not presented to the jury supports a witness’s testimony. State v. Lamar, 205 Ariz. 431, 441, 72 P.3d 831, 841 (2003) (citing State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989)).

When improper vouching occurs the trial court can cure the error by instructing the jury not to consider attorney’s arguments as evidence. Payne, 233 Ariz. at 512, 314 P.3d at 1267. In order to reverse a conviction based on improper comments from the prosecutor, the comments must be so egregious as to deprive the defendant of a fair trial and render the resulting conviction a denial of due process. State v. Haverstick, 234 Ariz. 161, 164, 318 P.3d. 877, 880 (App. 2014) (citing State v. Hernandez, 170 Ariz. 301, 307, 823 P.2d 1309, 1315 (App. 1991)).

Improper Comments by Either Side

Counsels’ improper comments can occur during various parts of a trial. One of the most commonly thought of impermissible argument occurs when the prosecutor comments on the defendant’s failure to testify or on the defendant’s post-arrest silence. Counsel for either side may act improperly by disparaging one another, expressing personal opinions or beliefs, misstating evidence or issues in order to mislead the jury, and even predicting the consequences of the verdict.

In deciding whether counsel’s argument is misconduct, courts consider two factors: (1) whether the statements called to the jury’s attention matters it should not have considered in reaching its decision, and (2) the probability that the jurors were in fact influenced by the remarks. State v. Nelson, 229 Ariz. 180, 188, 273 P.3d 632, 640 (2012) (citing State v. Newell, 212 Ariz. 389, 402, 132 P.3d 833, 846 (2006)).

When counsel does make some argumentative comments, the court will typically instruct the jury that it should consider only...

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