PROSECUTORS MUST BE IMPARTIAL

Monte Hester; April 1998

            “Send a message.”

            “I believe the witness.  If I didn’t believe him I wouldn’t have called him.”

            “The defendant’s attorney’s services come at a high price.  Sure he’s good, but the defendant paid good money for the representation.”

            “Are you going to let a bunch of city lawyers come down here and make your decision?   A bunch of city doctors who drive down here in their Mercedes Benz?”

            “You’re not legal in this country, are you?”

            Sometimes we as defense lawyers lose sight of the fact that the role of the prosecutor is supposed to be one of seeking justice not to obtain convictions.  When prosecutors in their zeal start making comments to the jury that they personally believe that someone is lying or that someone is telling the truth or make comments that are specifically intended to cause a sympathetic or prejudicial response, then a mistrial may indeed be appropriate.  Generally these errors can only be preserved by timely objections; however, some situations of misconduct are so egregious that an objection is not necessary because the comment or act has deprived the defendant of a fair trial.

CrR 7.6 governs the grounds for a new trial; and it also specifies the requisite process for raising a prosecutorial misconduct claim.

 The theory:

 In State v. Reed, 102 Wn.2d 140, 146-147 (1984), the court said,

 “Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice.  If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.”

     The Rule:

            To successfully argue “prosecutorial misconduct” he defendant has the burden of showing that: (a) the prosecutor has conducted himself improperly, (b) the misconduct affected (or will affect) the jury’s verdict, (c) and a substantial right of the defendant has been prejudiced.  (see State v. Stith, 71 Wn.App. 14, 19 (1993), State v. Copeland, ___ Wn.App. ____, (1998 - Div. 2).  Generally, these errors can only be preserved by timely objection.  However, some acts of misconduct are so egregious that an objection is not necessary because the comment or act has deprived the defendant of a fair trial.

     What to look for:

            Defense attorneys should be alert to any statement by a prosecuting attorney that can be construed as a statement of his or her own opinion as to any matter before the jury. The most fertile fields of abuse include the following:  statements reflecting the prosecutor’s personal belief of guilt or innocence, statements indicating the prosecutor’s personal belief of a witness’s credibility or lack thereof, and acts or statements designed only to appeal to jurors’ passion and sympathy .  In State v. Sergeant, 40 Wn.App. 340, 343 (1985), the prosecutor made definitive statements about personally believing the testimony of a key witness. The court of Appeals concluded that, “[I]t is improper for a prosecutor to express his personal opinion about the credibility of a witness and the guilt or innocence of the accused in jury argument”  The court went on to say, “[p]rejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion.”  Because the prosecutor’s remarks could not have been cured with an appropriate instruction, the remarks were ruled to be so prejudicial as to deprive Sargent of a fair trial.

     How to get a new trial:

            Unfortunately not all claims of prosecutorial misconduct, even if successful rulings, will lead to a new trial.  A trial court’s decision granting or denying a motion for a new trial is reviewed under an abuse of discretion standard and will not be disturbed on appeal unless there is a clear abuse of such discretion. State v. Bartholomew, 98 Wn.2d 173, 211 (1982).  When determining whether a new trial should be granted, the court considers the following:  the seriousness of the irregularity, whether the comment was cumulative to other evidence properly admitted, and whether the irregularity could be cured by instruction to the jury to disregard the remark.  State v. Avendano-Lopez, 79 Wn.App 706 (1995). 

            Some isolated errors are so egregious that they can not be cured by asking a jury to disregard an argument, comment, or question.  (See State v. Smith, 189 Wash. 422 (1937) where it was reversible error to deny a new trial for misconduct of prosecutor who asked the accused a prejudicial question in the jury’s presence which had been ruled out in its absence, and where instruction to the jury to disregard would not have cured the problem.) 

            A cumulation of several incidences of misconduct may be adequate grounds for convincing the court to grant a new trial.  “There comes a time… …when the cumulative effect of repetitive prejudicial error becomes so flagrant that no instruction or series of instruction s can erase it and cure the error.”  State v. Torres, 16 Wn.App. 254, 263 (1976)citing State v. Case, 49 Wn.2d 66, 73 (1956).  In Torres, the prosecutor engaged in many acts of misconduct, many of which would not alone have resulted in a new trial.  However, the cumulative effect was to create such prejudice that no curative instructions could have been expected to work.

            Unfortunately, many isolated incidences of prosecutorial misconduct will not result in a new trial.  In those cases the court will exercise it’s judgment in determining whether the misconduct can be cured by instructing the jury to disregard the relevant misconduct.  More often than not, the trial court will attempt to cure any minor acts of misconduct by so instructing the jury; and, again, on appeal, the trial courts discretion on such matters will only be disturbed upon a showing of an “abuse of discretion.”  See State v. Agren, 28 Wn.App. 1 (1980), State v. Sang, 184 Wash. 444 (1935), and State v. Smith 189 Wash. 422 (1937).

One court indicated that a plea by a prosecutor that in effect exhorts the jury to send a message to society is an improper emotional appeal.  State v. Bautista-Caldera, 56 Wn.App. 186 (1989).

     Conclusion:

            Pay close attention during closing argument because the issue of prosecutorial misconduct seems to surface  when prosecuting attorneys display the most passion for their cases or are desperate because of poor facts and weak evidence.  Look particularly for statements that can be construed by the jury as personal opinions of the prosecutor.   However, misconduct also regularly occurs during improper questioning of a witness (usually about matters previously ruled inadmissible), and during discovery (see State v. Copeland, supra.:  a brand new case that discusses a prosecutor who failed to disclose prior criminal convictions of witnesses when that information is within the knowledge, control or possession of the prosecutor or of other members of the prosecutor’s staff, regardless of whether the deputy prosecutor has actual knowledge of the information.)