by

Jill Paperno, Second Assistant Monroe County Public Defender

In a number of recent cases, courts have addressed examples of prosecutorial misconduct. Set forth below is some of the conduct which has been condemned. Remember - if you don't object, the misconduct is not going to be preserved for appellate review. Even during summation. (You might want to prep your jury for the fact you'll be objecting, even during summation, and ask them if they will they hold that against your client..)

Jackson v. Conway, 2011 WL 657422 (WDNY)

1. Belated disclosure of a jailhouse informant causing a change of counsel, despite the fact that the prosecutor knew of the informant for months before the disclosure. The Court: "Clearly, by hiding the 'Arnold card', she was attempting to secure a tactical advantage over the defense. This type of sharp practice is not only unseemly and not befitting a representative of the People of the State of new York, but was, in the words of Justice Sutherland, a foul blow striking at the heart of Petitioner's Sixth Amendment right to have effective counsel at his side. The prosecutor's deplorable scheme had the desired effect of blind-siding the defense and requiring a last-minute substitution of counsel."

2. Opening - "During her opening statement to the jury, the prosecutor informed the jurors that they would 'have an entirely different picture of defendant than the superficial presentation of him that [they] have now.' At the end of the case, the prosecutor claimed, Jackson would be 'exposed as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly.' Id. ...The law is well established that it is improper for a prosecutor to attempt to focus the jurors' attention on a defendant's moral character instead of the evidence, and try to inflame their passions and prejudices based upon the egregious nature of the acts alleged to have been committed. (cites omitted)....There is no doubt that the prosecutor's statement was designed to inflame the jurors' passions and attempt to bias them against Petitioner and engender sympathy for the victim."

3. Trying to elicit improper testimony from an "expert" witness - "Furthermore, the prosecutor made a patently frivolous argument when she persisted in urging that Dr. Lenane, although she had not examined any of the victims, should be permitted to read the findings and conclusions of the (uncalled) treating physicians into evidence. The Court does not believe that an attorney of her experience could truly be so ignorant of one of the most basic principles of the rules against hearsay."

4. Violation of the terms of the "Prior Bad Act" evidentiary ruling: The DA improperly elicited prior bad acts outside the time period the trial court had delineated as permissible for the prior bad act testimony.

5. Testifying as an unsworn witness, vouching for witness credibility, personally expressing her won belief in petitioner's guilt:
"The prosecutor improperly testified as an unsworn witness when she told the jury that the 'heinous, horrific acts' related by witnesses 'really happened' and that (defendant had) committed them. The prosecutor improperly bolstered her witnesses credibility and invaded the jury's province of assessing the witnesses' demeanor when she said, '[E]ven the best actor or actress could not tremble with fear as continuously as some of these witnesses did.' The prosecutor asserted that each witness testified consistently with all the others, and therefore that proved to the jury that their testimony was not part of a 'diabolical plan to frame (defendant)....The prosecutor told the jury that defendant was 'guilty of everything' and had 'consistently abused his family for years, basically beat them into submission.'...The prosecutor, over defense objection, commented, 'That man sitting over there, looking like he is pondering every word that is being said, is guilty.' The prosecutor stated that the only explanation for the testimony was that he was, in fact, guilty." The Court noted that a prosecutor's expression of his or her opinions threatens the fairness and integrity of the fact finding process in two ways, citing U.S. V. Young 470 US 1 - that the comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and thus jeopardizes the defendant's right to be tried solely on the evidence presented at trial, and that the prosecutor's opinion carries with it "the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence."

6. Misstating and Mischaracterizing evidence - During summation the prosecutor repeatedly mischaracterized the statement made by the defendant to a CPS caseworker.

People v. Presha, 2011 WL 1219258, 2011 NY Slip Op. 02563 (Fourth Dept.) (Monroe County case)

1.. "The prosecutor improperly questioned defendant on cross-examination regarding, e.g., the fact that he impregnated three women within a short amount of time and his failure to pay child support (cites omitted)...Defendants 'may be cross-examined with respect to prior conduct that affects their credibility (cites omitted) but 'persistent questioning of a defendant on collateral matters which tends to impugn his [or her] character without being probative of the crime charged constitutes improper and prejudicial cross-examination' (cites omitted). "

2. "The prosecutor also improperly attempted to refresh the recollection of defendant during cross-examination when in fact she was attempting to place the contents of a certain document in evidence that otherwise was inadmissible (cites omitted)."

3. The prosecutor "remarked during summation that the victim was 'so cute' and the 'most conscientious, respectful kid [she had] ever seen.' Such remarks improperly appealed to the sympathy of the jury (cites omitted and improperly vouched for the credibility of the victim (cites omitted). We thus take this opportunity to admonish the prosecutor that her 'mission is not so much to convict as it is to achieve a just result' (cites omitted)."

People v. Currier 2011 WL 1205723 (Fourth Dept.), 2011 N.Y. Slip Op. 02573 -

The prosecutor improperly circumvented the Sandoval ruling by "cross-examining defendant's girlfriend concerning his arrest record." Unfortunately for Mr. Currier, the incidents of prosecutorial misconduct were not preserved and the Fourth Department declined to review in the interest of justice.

In a recent case I handled, the prosecutor has argued to the jury that a medical witness testified that children are likely to delay reporting, etc. when she never testified to that (and the judge thought I'd elicited that testimony when I had not, and overruled my objection), and that the defendant "ass-raped" the complainant. The prosecutor referred to the jurors as the child's "friends". In an older case involving a complainant named Sparkle, the prosecutor argued that there was no "Sparkle" left.

So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury