Prosecutorial Misconduct in Connecticut: a Review

Publication year2021
Connecticut Bar Journal
Volume 78.


VOLUME 78, NO. 3



In June 2004, the Connecticut Supreme Court decided State v. Stevenson,(fn1) in which it clarified its due process analysis in cases involving incidents of prosecutorial misconduct that were not objected to at trial. In eliminating the need for Golding review,(fn2) Stevenson held that as "the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial . . . [that] determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)."(fn3)

Stevenson is only the latest in a line of recent decisions examining, explaining and expounding on Connecticut prosecutorial misconduct jurisprudence. Moreover, the topic is increasingly controversial. As one judge observed, "Prosecutorial misconduct has become the criminal equivalent of the CUTPA claim, seemingly attached to all criminal appeals whether meritorious or not."(fn4)

It is therefore the aim of this article to chronicle the evolution of that jurisprudence, examining origins and highlighting trends throughout the years. Focusing on 117 decisions of the Connecticut Supreme Court from 1902 to the present, this review is intended to be comprehensive, but by no means completely exhaustive. For purposes of this review, the evolution of prosecutorial misconduct in Connecticut is separated into three periods: "Pre-Williams Origins," focusing on developments from 1902-1987; "The Forgotten Williams

* Of the Middletown Bar.

1 269 Conn. 563, 849 A.2d 626 (2004).

2 See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

3 Id. at 573. The Williams factors are: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the misconduct; (3) the frequency of the misconduct; (4) the centrality of the misconduct to the critical issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state's case. State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). These factors are not exclusive. Id.

4 State v. Jarrett, 82 Conn. App. 489, 501, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004).

Era," covering 1987-1999; and, finally, "Recent Developments: the Re-Emergence of Williams," which examines activity from 2000 to the present.

This article endeavors to elucidate precisely what the law currently is in Connecticut on prosecutorial misconduct, with an eye toward application in future decisions. It concludes that this body of law has evolved into a fact-specific balancing approach in which the particularities of each individual case ultimately determine the fate of prosecutorial misconduct claims. That said, certain generalities may be discerned from the recent decisions. With four more appeals currently pending as of this writing,(fn5) however, the conclusions contained herein may be further qualified by what the Connecticut Supreme Court decides in those cases.


The Connecticut Supreme Court first tackled the issue of prosecutorial misconduct more than a century ago. In State

v, Laudano,(fn6) the court was presented with the claim that the improper remarks of the prosecutor entitled the defendant to a new trial. Born in Italy, the defendant immigrated to this country in 1883. The gist of the prosecutor's allegedly improper remarks was that the defendant was associated with the Mafia.(fn7) The court proferred the following critical inquiry into whether such statements constituted prosecutorial misconduct: "[A]ssuming that the remarks in question were improper, were they of such a nature, under all the circumstances, that a reasonable man, looking at the evidence in the case, would say that they may have so prejudiced the jury unfavorably to the accused as to deprive him of a fair trial?"(fn8) Answering that query, the court concluded that "[l]ooking at the evidence in the case, and the claims and arguments made

5 See State v. Fauci, cert, granted, 273 Conn. 921, 871 A.2d 1029 (2005); State v. Rowe, cert, granted, 272 Conn. 906, 863 A.2d 699 (2004); State v. Ritrovato, cert, granted, 272 Conn. 905, 863 A.2d 699 (2004); State v. Warholic, cert, granted, 271 Conn. 935, 861 A.2d 512 (2004).

6 74 Conn. 638, 51 A. 860 (1902).

7 Id. at 642.

8 Id. at 646.

on behalf of the accused, and the charge to the jury upon the issues in the case, we cannot say that the remarks exceeded the limits of fair argument and comment, or that the accused was thereby deprived of a fair trial."(fn9) From Laudano we may thus glean a first, and perhaps quintessential, principle of Connecticut prosecutorial misconduct jurisprudence: that such allegations are to be considered in the context of the entire trial.(fn10)

Consequently, the court has stated that the defendant's burden is to prove that the alleged misconduct was so prejudicial that it tainted the entire proceedings.(fn11) During closing argument in State v. Couture,(fn12) the prosecutor, reading from a prepared text, made a number of disparaging comments about the defendant and his codefendant, characterizing them, inter alia, as "murderous fiends," "rats," "utterly merciless killers" and "inhumane, unfeeling and reprehensible creatures."(fn13) As the court framed the issue before it:

The question then is whether the remarks of the prosecution were so egregious that no curative instruction could remove their prejudicial impact. If the characterization of the defendant consisted of an isolated remark we would conclude that the potential prejudicial impact on the jury could be obviated by a curative instruction. But here, where the prosecutor persisted in his invective and the defendant's repeated objections were overruled, the jury could only be left with the impression that the comments were proper. To suggest that an instruction would neutralize the prejudicial impact is to defy reality. . . . Each case necessarily depends on its own facts and circumstances. If the challenged remarks occurred in the heat of a summation, if they were only isolated or brief episodes in a lengthy summation and if they were followed by a curative instruction, the weight of the evidence against the

9 Id. at 645.

10 See, e.g., State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984) ("In the context of the entire trial, we cannot conclude that the challenged argument, though prejudicial in isolation, has been demonstrated to rise to the level of denying the defendant's constitutional right to a fair trial"); State v. Baker, 182 Conn. 52, 437 A.2d 843 (1980); State v. Kinsey, 173 Conn. 344, 377 A.2d 1095 (1977).

11 See State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978), and State v. Binet, 192 Conn. 618, 473 A.2d 1200, 631-32 (1984) (new trial ordered due to "grave prejudice" in light of entire proceeding).

12 194 Conn. 530, 482 A.2d 300 (1984).

13 560-61.

defendant could be a significant factor in upholding his conviction. . . . But here the prosecutor's prepared remarks were deliberate, facially improper, persistent and pronounced.(fn14)

The court thus concluded that the prosecutor's remarks so tainted the trial as to deny the defendant due process.(fn15)

A second principle of Connecticut prosecutorial misconduct jurisprudence concerns the unique position occupied by the state's attorney.(fn16) In the seminal case of State v. Ferrone,(fn17) the court expounded on that position:

The case before us is a criminal case, and the counsel whose statements are in question is the State's Attorney. He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. . . . His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. . . . While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.(fn18)

In Ferrone, the prosecutor referred to a fact not in evi-

dence, telling the jury that he "saw fit to put the other three men away."(fn19) Because those words were intended and adapt-

ed to influence the minds of the jurors against the defendant, a new trial was granted.(fn20) Likewise, it was the exploitation of

the prosecutor's unique position which led to a new trial for the defendant in State v. Santeio.(fn21) As the court explained: "The prestige and confidence justly pertaining to the office of

the state's attorney and his personal reputation for conscientious probity and fairness gave it a finality which decisively

14 Id. at 562-64 (internal quotation marks and citations omitted).

15 Id. at 564.

16 "[T]he prosecutor, for good or ill, is the most powerful figure in the criminal

justice system." BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT vi (2d ed. 2003).

17 96 Conn. 160, 113 A. 452 (1921).

18 Id. at 168-69.

19 Id. at 162.

20 Id. at 163-64.

21 120 Conn. 486, 181 A. 335 (1935).

put an end to attack upon the credit of [the witness] based upon any promise or assurance of exemption from prosecution, or similar concession. The resulting disadvantage to the defendant is obvious."(fn22) Though the prosecutor's unique position is significant...

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