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F 2.019 n1 Prosecutorial Misconduct: Duty To Remain Impartial.
“It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.” (U.S. v. Kojayan (9th Cir. 1993) 8 F3d 1315, 1324.) It is not. An attorney for the government is a “representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. U.S. (35) 295 US 78, 88 [79 LEd2d 1314; 55 SCt 629].) Put differently: “The prosecutor’s job isn’t just to win, but to win fairly, staying well within the rules.” (Kojayan, 8 F3d at 1323; see also United States v. Weatherspoon (9th Cir. 2005) 410 F3d 1142 [“. . . we stress that the ethical bar is set higher for the prosecutor than for the criminal defense lawyer — a proposition that has been clear for at least seven decades. . .”]; U.S. v. Blueford (9th Cir. 2002) 312 F3d 962.)
F 2.019 n2 Prosecutorial Misconduct: Delivering Soliloquy In Victim’s Voice.
Drayden v. White (9th Cir. 2000) 232 F3d 704, 713, held that the prosecutor committed misconduct “when he delivered a soliloquy in the voice of the victim.” He “inappropriately obscured the fact that his role is to vindicate the public’s interest in punishing crime, not to exact revenge on behalf of an individual victim.” Such conduct “seriously risked manipulating and misstating the evidence by creating a fictitious character based on the dead victim and by `testifying’ in the voice of the character as if he had been a percipient witness.”
F 2.019 n3 Prosecution Misconduct: Use Of Perjured Or False Testimony.
The prosecution has the “basic duty … to correct any testimony of its own witnesses which it knew … was false or misleading. [Citations.]” (In re Jackson (92) 3 C4th 578, 595, italics omitted; accord, People v. Seaton (2001) 26 C4th 598, 647; Napue v. Illinois (59) 360 US 264, 269-70 [3 LEd 2d 1217; 79 SCt 1173] [prosecutor has an independent, constitutional duty to correct testimony he knows to be false]; U.S. v. LaPage (9th Cir. 2000) 231 F3d 488 [presentation of false evidence required reversal, even though prosecutor finally conceded in closing argument that testimony was false]; N. Mariana Islands v. Bowie (9th Cir. 2001) 243 F3d 1109.) The prosecutor’s duty to correct false testimony arises, not simply out of a duty of fairness to the defendant, but out of “the free standing constitutional duty of the State and its representatives to protect the system against false testimony.” (Bowie, 243 F3d at 1118.) Therefore, regardless of whether defense counsel should have known that a state witness testified falsely, “[a] prosecutor’s `responsibility and duty to correct what he knows to be false and elicit the truth,’ Napue, 360 US at 269-70, requires [him] to act when put on notice of the real possibility of false testimony.” (Id.; see also People v. Morales (2003) 112 CA4th 1176, 1192-93; Belmontes v. Woodford (9th Cir. 2003) 350 F3d 861, 881-82.)
(See also F 2.04d [Fabrication Of Evidence By Police Or Prosecution].)
F 2.019 n4 Prosecutorial Misconduct: Invoking Religious Authority.
See Sandoval v. Calderon (9th Cir. 2000) 231 F3d 1140, 1150 [defendant was denied fair trial when prosecutor’s closing argument invoked divine authority and paraphrased Bible passage as supporting imposition of death penalty].
F 2.019 n5 Prosecutorial Misconduct: Asking Jury To Make Inferences Prosecution Knew Were False.
See U.S. v. Blueford (9th Cir. 2002) 279 F3d 1084, 1090 [improper for government to propound inferences that it knows to be false, or has very strong reason to doubt]; see also U.S. v. Kojayan (9th Cir. 1993) 8 F3d 1315, 1318-19, 1321 [the difference between a lawyer “ask[ing] the jury to infer only things that he believed in good faith might be true” and making “factual assertions he well knew were untrue” is “the difference between fair advocacy and misconduct”]; U.S. v. Udechukwu (1st Cir. 1993) 11 F3d 1101, 1106 [“[i]t is improper to imply reliance on a fact that the prosecutor knows to be untrue”]; U.S. v. Valentine (2nd Cir. 1987) 820 F2d 565, 566 [finding prejudicial misconduct where “the prosecutor misrepresented, at least implicitly, the substance of the testimony of several grand jury witnesses”].)
F 2.019 n6 Prosecutorial Misconduct: Arguing Factually Unsupported Inferences.
“It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is decidedly improper for the government to propound inference that it knows to be false, or has very strong reason to doubt, particularly when it refuses to acknowledge the error afterwards to either the trial court or this court and instead offers farfetched explanations of its actions.” (U.S. v. Kojayan (9th Cir. 1993) 8 F3d 1315, 1318-19, 1321 [the difference between a lawyer “ask[ing] the jury to infer only things that he believed in good faith might be true” and making “factual assertions he well knew were untrue” is “the difference between fair advocacy and misconduct”]; U.S. v. Udechukwu (1st Cir. 1993) 11 F3d 1101, 1106 [“[i]t is improper to imply reliance on a fact that the prosecutor knows to be untrue”]; U.S. v. Valentine (2nd Cir. 1987) 820 F2d 565, 566 [finding prejudicial misconduct where the prosecutor misrepresented, at least implicitly, the substance of the testimony of several grand jury witnesses]; see also U.S. v. Blueford (9th Cir. 2002) 312 F3d 962.)
F 2.019 n7 Prosecution Misconduct: Disparagement Of Defense Counsel.
“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (98) 17 C4th 800, 832.) “If there is a reasonable likelihood that the jury would understand the prosecution’s statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established.” (People v. Cummings (93) 4 C4th 1233, 1302.) “An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.” (Hill, at p. 832, quoting 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Trial, § 2914, p. 3570; see also People v. Young (2005) 34 C4th 1149, 1189: “Prosecutorial argument that denigrates defense counsel directs the jury’s attention away from the evidence and is therefore improper”]; People v. Turner (2005) 34 C4th 406, 429-30; People v. Frye (98) 18 C4th 894, 978 [argument that denigrates the honesty and integrity of defense counsel as misconduct]; People v. Cummings (93) 4 C4th 1233, 1302 [characterizing defense counsel as “liars” or accusing defense counsel of lying to the jury was misconduct which denigrated counsel’s integrity and honesty].)
F 2.019 n8 Prosecution Misconduct: Asking Defendant Whether Police Officers Are Lying.
It is generally not proper to ask a lay witness whether another person’s statements are credible. (People v. Zambrano (2004) 124 CA4th 228.) Accordingly, it is prosecutorial misconduct to ask a defendant whether the police officers are lying. (Ibid.)
F 2.019 n9 Prosecution Misconduct: Vouching For Witnesses.
See People v. Turner (2004) 34 C4th 406 [prosecutor may not vouch for the credibility of witnesses or otherwise bolster their veracity by referring to evidence outside the record]; see also United States v. Weatherspoon (9th Cir. 2005) 410 F3d 1142.
F 2.019 n10 Prosecutorial Misconduct: Insinuating The Truth Of The Facts In Question Put To A Witness.
The prosecutor may not “ask questions of a witness that suggests facts harmful to a defendant absent a good faith belief that such facts exist.” (People v. Bolden (2002) 29 C4th 515, 562 [internal quotation marks omitted.].) In other words, “a prosecutor may not examine a witness solely to imply or insinuate the truth of the facts about which questions are posed.” (People v. Visciotti (92) 2 C4th 1, 52; see also People v. Young (2005) 34 C4th 1149, 1186.
F 2.019a
Admonition To Counteract Prosecutor Misconduct
Ladies and Gentlemen of the jury, the prosecutor has just made certain uncalled for insinuations about the defendant. I want you to know that the prosecutor has absolutely no evidence to present to you to back up their insinuations. The prosecutor’s improper remarks amount to an attempt to prejudice you against the defendant. Were you to believe these unwarranted insinuations, and convict the defendant on the basis of them, I would have to declare a mistrial. Therefore, you must disregard these improper, unsupported remarks.
Points and Authorities
“[W]hen the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred. He should aim to make a statement to the jury that will counteract fully whatever prejudice to the defendant resulted from the prosecutor’s remarks.“ (People v. Bolton (79) 23 C3d 208, 215-16, fn 5 [152 CR 903].)
The above instruction is the one Bolton suggested could have been used in that case.
By guarding against the jury‘s consideration of facts not introduced into evidence this instruction protects the defendant‘s federal constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments). (See generally, FORECITE PG VII(C).)
CAVEAT: As with most cautionary or limiting instructions, counsel will have to determine whether the benefits of the instruction outweigh the danger that it might unduly emphasize the prejudicial matter. [See FORECITE F 2.002a.]