Prosecutorial Misconduct: Closing Argument

Case:  State of Tennessee v. Noura Jackson

Facts:  The opening sentence of the prosecutor’s closing argument was: “Just tell us where you were.  That’s all we’re asking, Noura.”  The Defendant objected to the apparent improper reference to the Defendant’s post-arrest silence.  The prosecutor told the court that she was referencing testimony from a witness who had asked where the Defendant was.  The court offered an immediate curative instruction and declined to order a mistrial.

Appellate Decision:  The CCA upheld the conviction, concluding that the statement was “certainly dramatic” but not improper.  The court noted that the statement was, in fact, consistent with the witness’s testimony; that it was unclear whether the prosecutor meant to comment on the Defendant’s silence; and that any error would have been harmless in light of the curative instruction and the strength of the evidence of guilt.  A two-judge concurrence concluded that the statement was improper, but did not affect the verdict in light of the curative instruction and the weight of the evidence.

Issue:  Was prosecutor’s statement in rebuttal that Defendant should “Just tell us where you were” an improper comment on Defendant’s post-arrest silence?

Review Granted:  April 9, 2013

Prediction:  David believes the Supreme Court will affirm but, like the concurrence, stress to prosecutors the bounds of permissible arguments concerning a Defendant’s silence.

ABOUT David Raybin
David Raybin

David Raybin is a partner at Raybin & Weissman and he heads up the criminal defense section of the firm. With more than 35 years of experience, David has been named the Best Criminal Lawyer in Nashville by Best Lawyers in America, and listed among the Best Criminal Lawyers in the state by Tennessee Business magazine.

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