Generally speaking, prosecutors have significant freedom to say what they like in a closing argument. However, the American justice system operates on the premise that juries will reach a verdict based only on the evidence properly before them. Prosecutors commit misconduct when they ask a jury to base its decision on something other than the facts of the case.
In cases where this happens and the defendant is later found guilty, a criminal defense attorney can sometimes get the conviction thrown out on appeal.
In one such recent case, the 9th Circuit Court of Appeals overturned a San Diego jury’s conviction of an alleged drug trafficker after the prosecutor improperly asked the jury to find the defendant guilty in order to make a statement.
The defendant in that case claimed that he was coerced by cartel members into transporting drugs across the U.S.-Mexico border. The prosecutor told the jury that accepting the defendant’s defense would “send a memo” to the drug cartels that they could get away with trafficking so long as they threaten the lives of their drivers and the drivers’ families.
The Court of Appeals found the argument improper, stating that “prosecutors may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order or deter future lawbreaking.”
Prosecutorial Misconduct in Closing Arguments
Whether a prosecutor has committed misconduct in a closing argument is dependent on the particular facts of the case. However, there are a few basic rules all prosecutors must follow.
As noted above, a prosecutor may not ask the jury to use its verdict to send a message or make a point. For example, the prosecutor may not ask the jury to find a defendant guilty in order “send a message that violent crimes are not tolerated in our community.”
Further, although prosecutors are allowed imply that a defendant or witness has been untruthful, they are not allowed to directly state that the person had lied. Similarly, prosecutors are not allowed to “vouch” for a witness by saying things like “I know for a fact Officer Jones is a man you can trust.”
Finally, although a prosecutor can properly ask a jury to draw on common knowledge, it is misconduct to ask a jury to assume facts not in evidence or to ask a jury to consider the prosecutor’s opinion as evidence.
It is not uncommon for prosecutors to occasionally step over the line in their closing arguments. For that reason, it is important that defendants enlist the help of a skilled criminal dense attorney who can spot improper arguments and object to them before it is too late.