Prosecutorial Misconduct Standard of Review
Facts: On appeal, Defendant raised six challenges to the State’s closing argument. The State argued all but one of those challenges were waived because Defendant failed to object during the closing argument, in the motion for new trial, or both.
Appellate Decision: The intermediate court held that any challenge to closing argument to which Defendant did not raise a contemporaneous objection should be reviewed only for plain error.
Review Granted: October 13, 2021. The Supreme Court specified that review was granted as to “whether plenary or plain error review should apply to a claim of prosecutorial misconduct during closing argument when a contemporaneous objection is not lodged at the time the misconduct allegedly occurred but the claim is raised in the motion for a new trial.”
Prediction: Ben thinks the Supreme Court will affirm and agree that plenary review requires a contemporaneous objection to give the trial court an opportunity to remedy any error.