Prosecutorial misconduct

Georgetown Law Journal, Jun 1998 by Martin, Alexis W

1871. See DeChristoforo, 416 U.S. at 641, 644-45 (prosecutor's statement that defendant hoped to be convicted of something less than first-degree murder not reversible error where followed by specific curative instructions); cf. U.S. v. Bautista, 23 F.3d 726, 732-34 (2d Cir. 1994) (prosecutor's remark that witnesses' statements did not contain discrepancies not reversible error where judge immediately reprimanded prosecutor).

Compare U.S. v. Oreto, 37 F.3d 739, 744-46 (lst Cir. 1994) (prosecutor's improper coaching witnesses for in-court identification of defendants not reversible error where trial court instructed jury to take into account that prosecutor coached witnesses); U.S. v. Evangelista, 122 F.3d 112, 115 (2d Cir. 1997) (prosecutor's improper comment calling the defendant to the stand after audible comment from defendant at defense table not reversible error where the comment ultimately had no prejudicial effect on the defendant because curative instructions were immediately given); U.S. v. Ellis, 122 F.3d 908, 915 (4th Cir. 1997) (prosecutor's improper remarks regarding her own nearsightedness not reversible error where curative instructions were given); U.S. v. Fletcher, 123 F.3d 187, 193 (Sth Cir. 1997) (prosecutor's improper reference in closing argument to inculpatory facts that were never introduced into evidence not reversible error because comment was inconsequential and no curative instruction could be given because no objection was made); U.S. v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997) (prosecutor's statements referencing possible observations by the defendant not reversible error for commenting on defendant's failure to testify where the district court allowed defense counsel to write curative instructions); Stewart v. Duckworth, 93 F.3d 262, 267 (7th Cir. 1996) (prosecutor's improper remarks about past offenses of defendant not reversible error where objections sustained and curative instructions given); U.S. v. Armstrong, 112 F.3d 342, 344 (8th Cir. 1997) (an error in portion of prosecutor's opening argument was not reversible error where only three objections were made early in the trial and the court took curative action); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (prosecutor's improper statement that threats defendant made to witnesses demonstrated "the kind of malice that was on his mind when he did the killing," not reversible error where curative instructions given); U.S. v. Oles, 994 F.2d 1519, 1523-24 (lOth Cir. 1993) (prosecutor's improper reference in check fraud prosecution to $8.5 million judgment outstanding against defendant not reversible error where instruction to disregard comment given); U.S. v. Gainey, 111 F.3d 834, 836 (llth Cir.) (prosecutor's comment "we live here in South Florida and we are all familiar with it by now" referring to the illegal drug trade not reversible error where statement was sufficiently mitigated by curative instructions), cert. denied, 118 S. Ct. 395 (1997) and U.S. v. Thomas, 114 F.3d 228, 248 (D.C. Cir.) (prosecutor's failure to present evidence supporting opening statement not reversible error where sufficient curative instructions given), cert. denied, 118 S. Ct. 635 (1997) with U.S. v. Roberts, 119 F.3d 1006, 1011 (Ist Cir. 1997) (prosecutor's improper comments that when a defendant testifies he has the responsibility to present a compelling case reversible error where no curative instructions requested or given); Agard v. Portuondo, 117 F.3d 696, 712 (2d Cir. 1997) (prosecutor's improper comment during closing argument that defendant's presence in courtroom during testimony allowed defendant to tailor his testimony reversible error where no curative action was taken, weight of evidence against defendant was not compelling, and remark may have influenced jury); U.S. v. Morgan, 113 F.3d 85, 91 (7th Cir. 1997) (prosecutor's improper remarks appealing to jurors' emotions not reversible error even though curative instructions not immediately offered); U.S. v. Cannon, 88 F.3d 1495, 1502-03 (8th Cir. 1996) (prosecutor's improper reference to African-American defendants as "bad people" and calling attention to fact that defendants were not locals reversible error where defense counsel's objection not sustained, curative instructions not given, and evidence of defendant's guilt not overwhelming); U.S. v. Kerr, 981 F.2d 1050, 1053-54 (9th Cir. 1992) (prosecutor's improper vouching for credibility of four government witnesses reversible error where curative instructions overly general) and U.S. v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1997) (prosecutor's improper misstatements of fact reversible error where the district court took no steps to correct the misstatement with a curative instruction).