Prosecutorial Misconduct During Trial: Lessons Learned from State v. Pabst and Other Recent Cases

JurisdictionKansas,United States
CitationVol. 72 No. 3 Pg. 34-43
Publication year2003
Kansas Bar Journals
Volume 72.

72 J. Kan. Bar Assn. 3, 34-43 (2003). Prosecutorial Misconduct During Trial: Lessons Learned from State v. Pabst and Other Recent Cases

Kansas Bar Journal
72 J. Kan. Bar Assn. 3, 34-43 (2003)

Prosecutorial Misconduct During Trial: Lessons Learned from State v. Pabst and Other Recent Cases

By Kevin J. Breer

I. Introduction

Every lawyer wants to win the case for his or her client.[1] Indeed, a lawyer should be a zealous advocate for his or her client.[2] For prosecutors, however, the duty to "win" is secondary to the primary duty to serve the system of justice and the court. How far may a lawyer go in advocating for the client?

Several recent cases decided by the Kansas appellate courts have sent a signal to prosecutors that their inappropriate conduct in the courtroom will no longer be tolerated. These cases have received considerable attention in the media. One article surmised that prosecutors have not heeded the warnings over the last several years and that the appellate courts are increasingly willing to reverse a conviction if the prosecutor's actions justify such a decision.[3]

This article will examine several recent cases involving prosecutorial misconduct. Although the focus of the article is on criminal cases, the lessons learned from the cases can often be applied in a civil context. Additionally, this article will discuss remedies other than, or in addition to, reversal which are being tried in courts throughout the United States.

II. Rules and Ethical Considerations for Conduct During Trial

KRPC 3.4 governs a lawyer's duty in trial and sets forth, in pertinent part:

A lawyer shall not:

. . .

(5) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.[4]

The ABA standards for prosecutors sets forth that:

(a) In closing arguments to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.

(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.[5]

The comments to Rule 3.4 generally discuss the need for fairness in the trial process:

The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.[6]

Kansas Supreme Court Rule 8.4 governs misconduct and states, in pertinent part:

It is professional misconduct for a lawyer to:

. . .

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

. . .

(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

III. Recent Decisions by Kansas Appellate Courts

The following cases illustrate various forms of misconduct that can result in reversal. While not exhaustive, they do represent the significant cases heard by the Kansas appellate courts over the past few years.

A. State v. Pabst

The Kansas Supreme Court's decision in State v. Pabst[7] is one of the most notable cases of prosecutorial misconduct the state has ever seen. The Pabst case should serve as a warning to prosecutors to be very careful during closing argument.[8]

Pabst was charged with first-degree murder. At trial, Pabst testified that the shooting was accidental and that he did not intend to shoot his fiancée. During closing argument, the prosecutor, an assistant attorney general, accused Pabst of lying during his testimony at least 11 times.[9] The prosecutor stated:

You heard many lies that I think you heard. The Defendant [sat] right before you and lied to you about what happened.

. . .

While the defense attorney's talking to you, remember one thing; the state put facts in front of you. We didn't lie to you. We didn't hide anything. We put all the facts in front of you for you to decide, because the state seeks justice here. They seek the proper result based on the evidence. And what did the Defendant do? He lied to you. Many, many times, he lied to you. So while [the defendant's attorney] talks to you, remember that his client, the Defendant, lied to you. He didn't even give you close to a reasonable explanation. Ladies and gentlemen, listen to him with that in your mind.

. . .

He wants you to have it both ways. Believe the Defendant's testimony, ladies and gentlemen, in order to buy defense counsel's argument here, you have to believe the Defendant. And you saw him. You heard from him. I look into each one of your eyes and I tell you he lied.[10]

Defense counsel objected and the objection was sustained. The trial court subsequently directed the jury to disregard the comment of the prosecutor. Defense counsel then moved for a mistrial, which the trial court denied.[11] Amazingly, the next thing the prosecutor said when he continued was "[T]he State tells you he lied." Defense counsel again objected. The prosecutor responded by arguing that it was a "fair comment."[12] The trial court overruled the objection. The prosecutor continued:

The State tells you he lied ladies and gentlemen. He lied to you. He got on that witness stand and he lied directly to you. He got up, down here in front of you, and he again lied directly to you. He could not explain this. He had no explanation.[13]

Although the trial court sustained one defense objection, the trial court overruled another, giving the jury the impression that the court endorsed the prosecutor's argument.[14]

In determining whether the prosecutor's closing argument amounted to misconduct requiring reversal, the Kansas Supreme Court in Pabst utilized a two-prong test. The "prosecutorial misconduct test" requires the court to: 1) decide whether the remarks were "outside the considerable latitude the prosecutor is allowed in discussing the evidence;"[15] and 2) determine whether the remarks are so gross and flagrant that they prejudice the jury and deny the defendant a fair trial.[16]

In applying the first prong of the two-prong test, the Pabst court noted that it is both the duty of the court and the prosecutor to assure that the State's closing argument stays within proper bounds.[17] Error may be found on appeal even if the improper statements were not objected to at trial.[18]

The Pabst court addressed two specific instances where the prosecutor had overstepped his bounds. First, the prosecutor asserted that Pabst lied when he took the stand. Second, the prosecutor attempted to bolster the testimony of the State's witnesses.

"Testifying" that the defendant lied is improper.[19] A prosecutor can, however, comment that certain testimony is "not believable."[20] The court in Pabst considered the prosecutor's statements that the defendant lied especially prejudicial because the key issue in the case was whether the shooting was accidental or intentional.[21]

"Testifying" to the jury in a way that attempts to bolster the credibility of the State's witnesses is also improper.[22] The court concluded that, because Pabst's testimony was so crucial to the outcome of the case, the conduct of the prosecutor was "outside the considerable latitude the prosecutor is allowed in discussing the evidence," thereby satisfying the first prong of the prosecutorial misconduct test.[23]

Although the court concluded that the first prong of the prosecutorial misconduct test was satisfied, the court also had to determine whether the prosecutor's comments "unfairly prejudiced" the jury against Pabst, denying him a fair trial.[24] The court specifically noted that professional impropriety alone will not justify reversal and that prejudicial effect must still be shown.[25]

In order to determine if the defendant is prejudiced to the point of being denied a fair trial, a court must decide if the misconduct had "little, if any, likelihood of having changed the result of the trial."[26] A court must also consider 1) the quality and quantity of the misconduct; 2) whether the prosecutor's remarks indicated "ill will" on the part of the prosecutor; and 3) the quality and sufficiency of the evidence against the defendant.[27]

In determining the quality and quantity of the misconduct, the court in Pabst focused on the prosecutor's disregard for the trial court's ruling when it sustained defense counsel's first objection to the remarks, and on the court's overruling defense counsel's second objection on the same grounds.[28] Specifically, the Kansas Supreme Court noted that the trial court's "endorsement" of the prosecutor's statements may have increased the prejudicial effect on the jury.[29]

In determining whether the second prong of the prosecutorial misconduct test was satisfied, the court also evaluated the prosecutor's attempt to alter the burden of proof.[30] In doing so, the prosecutor told the jury that if it found that Pabst was lying, it had to convict him.[31] The court noted that the State has the burden to prove the defendant guilty of the crime charged beyond a reasonable doubt and that the defendant's guilt does not turn on whether the jury believes his testimony or not.[32]

Thus, the Pabst court concluded that both prongs of the prosecutorial misconduct test had been satisfied and...

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