By Jill Paperno
Second Assistant Monroe County Public Defender

A prosecutor may not intentionally mislead and does not have unfettered discretion as to how to present or characterize evidence in a case, due to the prosecutor’s dual role as both an advocate for the prosecution and public officer.  Although we often cite People v Pelchat, 62 NY2d 97, in our motions relating to grand jury review, it is worth rereading the case that related to a prosecutor’s failure to clarify misleading information before the grand jury.

Some important language from the case:

It is familiar doctrine that a prosecutor serves a dual role as advocate and public officer. He is charged with the duty not only to seek convictions but also to see that justice is done. In his position as a public officer he owes a duty of fair dealing to the accused and candor to the courts, a duty which he violates when he obtains a conviction based upon evidence he knows to be false. Such misconduct may impair a defendant's due process rights and require a reversal of the conviction (see, e.g., People v Robertson, 12 NY2d 355; People v Savvides, 1 NY2d 554; People v Creasy, 236 NY 205; Napue v Illinois, 360 US 264; Alcorta v Texas, 355 US 28). 

People v Pelchat, 62 NY2d 97, 105 [1984].

With respect to information clearly known to the prosecutor, the law is clear – a prosecutor may not misrepresent.  The Supreme Court in Miller v Pate, 386 US 1, 6-7 (1967) stated:

The prosecution deliberately misrepresented the truth.  More than 30 years ago this Court held that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence. Mooney v Holohan, 294 US 103. There has been no deviation from that established principle. Napue v People of State of Illinois, 360 US 264; Pyle v State of Kansas, 317 US 213; cf. Alcorta v State of Texas, 355 US 28.  There can be no retreat from that principle here.

In People v Whalen the Court of Appeals, reversed the conviction and addressed the prosecutor’s mischaracterization of facts not even presented to the jury (defense counsel’s issuance of a notice of alibi):

Defendant, however, raises another argument that does require reversal. The prosecutor's conduct during summation was improper and prejudicial to defendant. The prosecutor repeatedly characterized defendant's alibi as a fabrication concocted during trial, notwithstanding the notice received months earlier and his knowledge that both defendant and his wife had been advised by counsel not to discuss anything with the police. This in itself violated the  prosecutor's obligation to seek justice, rather than conviction (see Code of Professional Responsibility, EC 7–13). 

People v Whalen, 59 NY2d 273, 280-81 [1983].

Similarly, a prosecutor may not create a false impression concerning evidence or facts.  In People v Wise, 74 AD2d 929 the Second Department reversed defendant’s conviction because the prosecutor created the false impression that the defense expert’s failure to review grand jury minutes was a failure in professionalism, implying grand jury minutes were always available to the defense.

In People v Novoa the Court of Appeals found the prosecutor’s mischaracterization of a benefit conferred on a witness, in addition to other prosecutorial misconduct, required reversal:

The trial assistant’s failure to reveal the promise in the first instance, her failure to correct Ortiz's misstatement that she had been promised nothing with respect to her pending case, and her own affirmative mischaracterization in the summation (emphasis added) constituted both a denial of defendant's rights and a breach of her own obligations as an officer of the court (see, People v Pelchat, 62 NY2d 97).

People v Novoa, 70 NY2d 490 [1987].

In People v Cotton, the Second Department reversed based on the prosecutor’s argument which was premised on inaccurate factual assertions:

The interest of justice is disserved when, as here, a prosecutor during summation advances a theory premised on a fact that he knows to be false in order to discredit the defendant's justification defense (see, People v Lantigua, 228 AD2d 213). It is undisputed that the prosecutor knew that the .32 caliber gun, which the defense contended the decedent aimed at the defendant, was inoperable. Yet, in attacking the defendant's justification defense, the prosecutor argued on summation that if the decedent had drawn a gun as the defendant contended, the defendant would not have had time to turn around, take two or three steps, receive a gun from someone in the crowd, turn back and fire four bullets before the decedent was able to fire a single shot. 

People v Cotton, 242 AD2d 638 [1997].

The Seond Department reversed another conviction in People v Spann, where the evidence did not clearly establish the particular location of a gun.  In Spann, the court criticized the prosecutor’s claim that the gun was found beneath the passenger seat:

As there was no evidence to establish that the handgun was found beneath the front passenger seat as opposed to the front driver's seat, the prosecutor misstated the evidence during summation when he told the jury on 14 occasions that the handgun had been found beneath the front passenger seat where the defendant was sitting (see People v Brown, 256 AD2d 414, 416; People v Cotton, 242 AD2d 638, 638–639; People v Cobb, 104 AD2d 656, 657).

People v Spann, 82 AD3d 1013, 1015-16 [2011].

In Spann the Second Department seemed to address the more subtle situation presented when the evidence is not directly inconsistent with a prosecutor’s claim, but the prosecutor argues facts that are not supported by the evidence.

A similar type of error occurs when a prosecutor argues different and inconsistent theories of culpability in codefendants trials.  In such situations, the prosecutor may be relying on evidence that exists in the case, but characterizes it differently depending on what suits the prosecutor’s theory, even if the arguments made in both cases are  mutually inconsistent (see, e.g., Smith v Groose, 205 F3d 1045, 1050 [8th Cir 2000]; Thompson v Calderon, 120 F3d 1045 [9th Cir 1997], rev’d on other grounds 523 US 538; United States v Salerno, 937 F2d 797, 812 [2nd Cir 1991], rev’d on other grounds, 505 US 317 [1992].

A prosecutor is, however, permitted on summation to make fair comment on the evidence and to respond to defense arguments – within the bounds of their ethical obligations (People v Hilliard, 279 AD2d 590 [2001]).

If the prosecutor makes assertions at trial or creates impressions that are counter to the  records you have from discovery or other information that the prosecutor is aware of, even if that information is not in evidence, consider making a motion for a mistrial pursuant to Pelchat, as well as your client’s right to a fair trial and due process as protected by the New York State and United States constitutions.  When you make the motion, mark and make a part of the record the police reports or other documents that demonstrate the information the prosecutor has that contradicts what they are claiming.