Prosecutorial misconduct

Georgetown Law Journal, Jun 1998 by Martin, Alexis W

of guilt, and cure given) and U.S. v. Small, 74 F.3d 1276, 1284 (D.C. Cir.) (prosecutor's improper references in opening and closing arguments to matter not introduced into evidence, where evidence not central to prosecution's proof of guilt, jury instructions mitigated effects of errors, and nothing in record suggested jury did not follow instructions, not violation of due process), cert.

denied, 116 S. Ct. 1867 (1996) with U.S. v. Roberts, 119 F.3d 1006, 1011 (lst Cir. 1997) (prosecutor's improper comments that defendant's testimony must present a compelling case reversible error where no curative instructions requested or given and the comments were not obscure undermining the fundamental fairness of the trial); 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 was due process violation of defendant's right to be present in courtroom and testify where no curative action was taken, weight of evidence against defendant was not compelling, and remark may have influenced jury verdict); Yohn v. Love, 76 F.3d 508, 510 (3d Cir. 1996) (prosecutor's improper engagement in ex parte conversation with Chief Justice of state Supreme Court regarding admission of evidence, where admitted evidence substantially influenced jury's decision and evidence of defendant's guilt not weighty, violation of due process); U.S. v. Carroll, 26 F.3d 1380, 1387-90 (6th Cir. 1994) (prosecutor's improper statements that witnesses were credible because they would not jeopardize their plea agreements by lying, where remarks repeated, no adequate curative instructions given, and no other evidence of guilt beside witnesses' statements, violation of due process); Miller v. Lockhart, 65 F.3d 676, 684-85 (8th Cir. 1995) (prosecutor's improper statements during closing argument of capital murder case that defendant had escaped once, references to defendant's failure to take stand or deny killing victim, prosecutor's claim that he had never seen anyone as tough as defendant, and characterization of defendant as "mad dog," where curative instructions insufficient, and remarks affected outcome of sentencing proceeding, violation of due process); U.S. v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990) (prosecutor's improper remarks suggesting government knew witness testified truthfully and offer to immunize government witness during trial, where close case and judge's instructions insufficient to undo harm, violation of due process) and U.S. v. Donato, 99 F.3d 426, 433 (D.C. Cir. 1996) (prosecutor's improper misstatements of fact resulted in a due process violation where the consequences of the misstatement were potentially severe, no curative instructions were given, and there was no certainty that the jury would have convicted absent the misstatements).