Sunday, November 20, 2011

An Idea That Might Get Prosecutors To Stop Asking Defendants If The Prosecution Witnesses Lied

Parents and teachers know you're more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op 08404 [4th Dept [11/18/11]), the Court wrote that

Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars. That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper (see People v Paul, 229 AD2d 932; People v Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards, 167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20 years ago, "[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

Perhaps if the Court, confronted by persistent misconduct, exercised its interest of justice jurisdiction and reversed, trial prosecutors would get the message and finally stop asking these improper questions. And if that seems too much, maybe the Court could deter the misconduct by simply naming in its decision the trial prosecutor who engaged in misconduct. The current practice of affirming while noting that the unnamed prosecutor acted improperly is a demonstrated failure at impacting behavior.

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