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Prosecutorial Misconduct: Closing Argument

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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.