Prosecutorial Misconduct: Closing Argument
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.