Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.

But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 

The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 

There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 

Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.

As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation

He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.

Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.

Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.

However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.

Last week's post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client's reversal.

But defense counsel who fail to object to prejudicial misconduct in summation risk other results. 

The worst possibility is that the appellate court might decline to exercise its discretionary jurisdiction to reverse in the interest of justice on an issue that might have merited reversal if the error had been preserved for review as a matter of law. 

There is another possibility in which the defendant is granted a new trial and appellate counsel might be happy with the results, but in which trial counsel is not likely to feel too good -- the appellate court might reverse for ineffective assistance of counsel based on trial counsel's failure to timely object to prosecutorial misconduct. 

Thrice in recent years, the Court of Appeals has reversed convictions on findings of ineffective assistance of counsel based, at least in part, on the failure to object to prejudicial prosecutorial misconduct in summation.

As discussed in detail here, in People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant's trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor's summation was egregiously improper and there was no evident strategic basis for counsel's failure to object. The Court wrote that

Even when viewed in the "totality" of the representation provided defendant, defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel (see People v Baldi, 54 NY2d 137, 146-147 [1981]). We see no strategic basis for counsel's failure to object to these highly prejudicial instances of prosecutorial abuse, in critical respects utterly attenuated from the evidence and the applicable principles of law.

Then, in People v Oathout (2013 NY Slip Op 03122 [21 NY3d 127] [5/3/13]), the Court reversed on a finding of ineffective assistance of counsel, in part, based on counsel's failure to object to multiple acts of misconduct in summation

He failed to object to the prosecutor's vouching for Lugo's credibility when the prosecutor told the jury that the police would not keep using her as a confidential informant if she were not credible. He also failed to object when the prosecutor pointed out to the jury that defendant, who did not testify at trial, took notes with his left hand during the trial and continued to theorize how the crime was consistent with its commission by a left-handed person—like defendant. Defense counsel failed to object despite the fact that there was no evidence presented either that defendant was left-handed or that the crime was committed by a left-handed person.

Most recently, in People v Wright (2015 NY Slip Op 05621 [25 NY3d 769] [7/1/15]), the Court, citing Oathout, reversed a conviction on a finding that defense counsel's ineffective assistance of counsel deprived the defendant of a fair trial when counsel defense counsel failed to object, time and again, when the prosecutor repeatedly misrepresented to the jury critical DNA evidence as proof of defendant's guilt by suggesting that the evidence directly linked defendant to the murder although it did not.

Again, the good news is that in all three cases there was ultimately a reversal. But in all three cases the defendant was convicted and lost his appeal at the Appellate Division. Thus, in all three cases the defendant spent years in prison prior to the reversal. All of that and a finding of ineffective assistance of counsel could have been avoided by timely objection to misconduct during summation.

However tempting it is to sit back  and simply exhale after giving a defense summation, neither the defendant nor the defense counsel can afford to have counsel stop working during the prosecutor's summation, which is quite a critical stage of the trial.

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable.

In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote

"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process."

(People v Santorelli, 95 NY2d 412, 420-21 [2000].)

On December 31st, the Fourth Department decided two cases in which it found that the prosecutor made improper remarks in summation.  Both were decided on appeal from judgments of conviction for sex offenses.  And in both the court exercised its discretion to review the issue of prosecutorial misconduct in the interests of justice because it was not properly preserved.

In the first, People v Gibson (2015 NY Slip Op 09722), the defendant appealed from a judgment of conviction for sexual abuse and other crimes.  The prosecutor engaged in misconduct in summation by (1) referring to facts not in evidence, (2) commenting on how difficult it was for the complainant to recount her ordeal, thereby improperly appealing to the jury's sympathy and bolstering the complainant's credibility, and (3) suggesting "that the jury experiment on themselves to see how quickly bite marks fade."  The court admonished the prosecutor, reminding him that "prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process."  Nevertheless, the court did not reverse the defendant's conviction on that ground, concluding that "it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law."

In the second, People v Jones (2015 NY Slip Op 09773), the defendant appealed from a judgment of conviction for attempted rape and other crimes.  The prosecutor in summation (1) "repeatedly invoked a 'safe streets' argument," even after the trial court sustained defense counsel's objection to that argument, (2) "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed" and improperly characterized the defense "as being based on a 'big conspiracy' against defendant" by the prosecution, (3) "denigrated the fact that defendant had elected to invoke his constitutional right to a trial," and (4) "mischaracterized and overstated the probative value of the DNA evidence."  The court found this latter act of misconduct the most egregious because of the obvious danger "posed to defendant when DNA evidence is presented as dispositive of guilt."  Finding that the prosecutor's misconduct caused substantial prejudice to the defendant and that the evidence of the defendant's guilt was "less than overwhelming," the court reversed the defendant's conviction.

These two cases serve to both provide examples of prosecutorial misconduct in summation and reiterate my earlier point that many defense attorneys are unclear about what amounts to misconduct, or, at least, do not properly preserve instances of misconduct for appeal--that is, by objecting to each instance, specifying why the comment was improper, and by taking exception to any curative instruction given if it was not sufficient to "cure" the prejudice created by the comment.

To provide a non exhaustive overview, taken from my running list, it is improper for a prosecutor to do any of the following in summation:

• refer to facts not in evidence;
• shift the burden of proof;
• refer to the defendant as a liar;
• denigrate the defense, defendant, or defense counsel or equate the defense to a conspiracy claim;
• offer a personal opinion as to the defendant's guilt;
• comment on the defendant's request for a lawyer;
• comment on the defendant's post-Miranda silence;
• arouse the jury's sympathy for the complainant or witnesses or otherwise inflame the passions and prejudices of the jury;
• infer that the community would be unsafe if the jury did not convict the defendant;
• equate a not guilty verdict with a finding that a witness perjured his or herself; and
• vouch for the credibility of the complainant or witnesses.

As the Gibson court noted, New York courts have taken the stance that "reversal is an ill-suited remedy for prosecutorial misconduct," preferring instead that prosecutorial misconduct be addressed internally or by each appellate division's disciplinary committee.  That being said, the appellate division will reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  And the appellate division measures whether substantial prejudice has occurred requiring reversal by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" (see Jones).

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable.

In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote

"Prosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities--constitutional, statutory, ethical, personal--to safeguard the integrity of criminal proceedings and fairness in the criminal process."

(People v Santorelli, 95 NY2d 412, 420-21 [2000].)

On December 31st, the Fourth Department decided two cases in which it found that the prosecutor made improper remarks in summation.  Both were decided on appeal from judgments of conviction for sex offenses.  And in both the court exercised its discretion to review the issue of prosecutorial misconduct in the interests of justice because it was not properly preserved.

In the first, People v Gibson (2015 NY Slip Op 09722), the defendant appealed from a judgment of conviction for sexual abuse and other crimes.  The prosecutor engaged in misconduct in summation by (1) referring to facts not in evidence, (2) commenting on how difficult it was for the complainant to recount her ordeal, thereby improperly appealing to the jury's sympathy and bolstering the complainant's credibility, and (3) suggesting "that the jury experiment on themselves to see how quickly bite marks fade."  The court admonished the prosecutor, reminding him that "prosecutors have special responsibilities . . . to safeguard the integrity of criminal proceedings and fairness in the criminal process."  Nevertheless, the court did not reverse the defendant's conviction on that ground, concluding that "it cannot be said here that it caused such substantial prejudice to the defendant that he has been denied due process of law."

In the second, People v Jones (2015 NY Slip Op 09773), the defendant appealed from a judgment of conviction for attempted rape and other crimes.  The prosecutor in summation (1) "repeatedly invoked a 'safe streets' argument," even after the trial court sustained defense counsel's objection to that argument, (2) "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed" and improperly characterized the defense "as being based on a 'big conspiracy' against defendant" by the prosecution, (3) "denigrated the fact that defendant had elected to invoke his constitutional right to a trial," and (4) "mischaracterized and overstated the probative value of the DNA evidence."  The court found this latter act of misconduct the most egregious because of the obvious danger "posed to defendant when DNA evidence is presented as dispositive of guilt."  Finding that the prosecutor's misconduct caused substantial prejudice to the defendant and that the evidence of the defendant's guilt was "less than overwhelming," the court reversed the defendant's conviction.

These two cases serve to both provide examples of prosecutorial misconduct in summation and reiterate my earlier point that many defense attorneys are unclear about what amounts to misconduct, or, at least, do not properly preserve instances of misconduct for appeal--that is, by objecting to each instance, specifying why the comment was improper, and by taking exception to any curative instruction given if it was not sufficient to "cure" the prejudice created by the comment.

To provide a non exhaustive overview, taken from my running list, it is improper for a prosecutor to do any of the following in summation:

• refer to facts not in evidence;
• shift the burden of proof;
• refer to the defendant as a liar;
• denigrate the defense, defendant, or defense counsel or equate the defense to a conspiracy claim;
• offer a personal opinion as to the defendant's guilt;
• comment on the defendant's request for a lawyer;
• comment on the defendant's post-Miranda silence;
• arouse the jury's sympathy for the complainant or witnesses or otherwise inflame the passions and prejudices of the jury;
• infer that the community would be unsafe if the jury did not convict the defendant;
• equate a not guilty verdict with a finding that a witness perjured his or herself; and
• vouch for the credibility of the complainant or witnesses.

As the Gibson court noted, New York courts have taken the stance that "reversal is an ill-suited remedy for prosecutorial misconduct," preferring instead that prosecutorial misconduct be addressed internally or by each appellate division's disciplinary committee.  That being said, the appellate division will reverse a conviction where the misconduct "has caused such substantial prejudice to the defendant that he or she has been denied due process of law."  And the appellate division measures whether substantial prejudice has occurred requiring reversal by looking at "the severity and frequency of the conduct, whether the [trial] court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached" (see Jones).