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).