Prosecutorial misconduct

Georgetown Law Journal, Jun 1998 by Martin, Alexis W

1872. Compare U.S. v. Evangelista, 122 F.3d 112 (2d Cir. 1997) (prosecutor's improper comment calling the defendant to the stand after audible comment from defendant sitting at defense table not reversible error because the comment ultimately had no prejudicial effect on the defendant, curative instructions were immediately given, the weight of the evidence against the defendant was great, and the remark was an aberration in an otherwise fair trial); U.S. v. Colletti, 984 F.2d 1339, 1343-44 (3d Cir. 1992) (prosecutor's misrepresentation of record by charging that defendant lied about with whom he worked on the night of robbery, when record supported defendant's assertion that his testimony truthful,

not reversible error where defendant's failure to object at trial supported inference that incident not significant in context of trial); U.S. v. Ellis, 121 F.3d 908, 915 (4th Cir. 1997) (prosecutor's improper remarks regarding her own nearsightedness not reversible error where remarks did not materially affect the verdict); 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 where comment was inconsequential); U.S. v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997) (prosecutor's statements referencing possible out of court statements by the defendant not reversible error for commenting on defendant's failure to testify where the remark was isolated); Stewart v. Duckworth, 93 F.3d 262, 267 (7th Cir. 1996) (prosecutor's improper remarks about defendant's past offenses not reversible error where no cumulative effect on jury verdict); U.S. v. Armstrong, 112 F.3d 342, 344 (8th Cir. 1997) (improper statement in prosecutor's opening argument not reversible error where there were only three objections early in the trial, the court took curative action, and the defendant's guilt was compelling); U.S. v. de Cruz, 82 F.3d 856, 864 (9th Cir. 1996) (prosecutor's allegedly improper statements that "the reason we have these laws is so that you, your neighbors and your friends and your relatives don't have to compete with illegal workers in the workplace" not reversible error where jury returned mixed verdict, which was evidence that jury's ability to weigh evidence not prejudiced); U.S. v. Ivy, 83 F.3d 1266, 1288 (lOth Cir.) (prosecutor's misstatements during closing argument not reversible error where improper statements unlikely to influence jury's verdict, and evidence of defendant's guilt adequate), cert. denied, 117 S. Ct. 253 (1996) and Cargill v. Turpin, 120 F.3d 1366, 1370 (llth Cir. 1997) (prosecutor's three improper comments during his opening statement and one improper reference to his own experience not reversible error where there was no cumulative effect on the jury) with U.S. v. Roberts, 119 F.3d 1006, 1011 (Ist Cir. 1997) (prosecutor's improper comments that a defendant's testimony must present a compelling case reversible error where the comments were not obscure); 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 remark may have influenced jury verdict) and Gravley v. Mills, 87 F.3d 779, 790 (6th Cir. 1996) (prosecutor's impermissible references to defendant's postarrest, post-Miranda silence mandated habeas corpus relief where references had substantial influence on jury and evidence of defendant's guilt not overwhelming).