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Prosecutorial Misconduct

January 22, 2021

Prosecutorial Misconduct

Case:   State of Tennessee v. Edward Walsh

Facts:   Defendant contends that the prosecutor made an improper statement in closing argument. Defendant did not make a contemporaneous objection at trial but did raise the issue in his motion for new trial.

Appellate Decision:   The intermediate court applied a plain error standard and concluded “no unequivocal rule of law” was breached, so Defendant was not entitled to relief.

Review Granted:   January 15, 2021. The Supreme Court’s order specified review was granted only to the question about “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 rule against the Defendant and hold the more restrictive plain error review applies when a contemporaneous objection is not raised during a closing argument, since otherwise the trial court does not have an opportunity to remedy a potential error.