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Eliminate Prosecutorial Misconduct

MOTIONS IN LIMINE:Other Creative Motions

Defense counsel requests that the Court order the prosecuting attorney to refrain from making any comment, insinuation, or statement at any time during the trial of this matter with respect to the following:

  1. Vouching for prosecution witnesses. Any expression whereby the prosecuting attorney renders an opinion as to the integrity or credibility of any witness or any other personal opinion of the prosecutor;
  2. Any reference to facts, opinions, or any implications that other facts exist, aside from facts presented by the evidence;
  3. Questioning of a witness whether “other witnesses are lying”;
  4. Discrediting defense counsel or suggesting “common tactic” of the defense, e.g., an attempt to “confuse”, an attempt to “raise red herrings”, an attempt to use “smoke and mirrors”;
  5. Any comment with respect to the conduct of the trial by defense attorney, defense strategy or potential motive of defense attorney with respect to such conduct and strategy.
  6. Any comment calculated to cause prejudice and/or evoke emotional response from the jury;
  7. Any comment whereby the jury is requested to “send a message” to the defendant and/or general public;
  8. Any comment with respect to the defendant’s right to hire an attorney and/or right to remain silent;

ARGUMENT

Each attorney in a criminal trial has an overriding duty as an officer of the Court to conduct his/herself in a professional manner thereby creating the atmosphere of a fair and impartial trial before an impartial jury. A defendant has a right to not be deprived of life, liberty of property without due process of law. See ABA Standards for Criminal Justice Section 3-5, 8(c), California State Bar Rule 5-200, the Constitution of the United States, Fifth and Sixth Amendments thereto.

  1. MISCONDUCT FOR THE PROSECUTOR TO “VOUCH” FOR HIS WITNESSES OR IMPLYING OTHER FACTS (OUTSIDE RECORD) EXIST
    • On May 6, 2005, in U.S. v. Weatherspoon, attached hereto as Exhibit “A”, the court held the prosecutor made improper statements, e.g. during argument he stated that the police officers were credible and the officers

      “had no reason to lie in this case or not tell the truth, if you believe the defense attorney, the officers must have lied at the scene, lied in court, lied to me, lied to the dispatcher, and lied to everyone. These officers risk losing their jobs, risk losing their pension, risk losing their livelihood and risk being prosecuted for perjury. That does not make sense. They told you the truth.”

    • The Court condemned these statements as “vouching”, which is placing the prestige of the government behind a witness through personal assurances of the witness’ veracity. Vouching also suggests that information not presented to the jury supports the witness’ testimony. It was error for the prosecutor to suggest the existence of legal and professional repercussions which served to insure the credibility of the officers. The court held these statements constitute improper vouching, are based upon matters outside the record, and skew the jury’s ability to determine credibility.
    • The court recognized that prosecutors must have a reasonable latitude to fashion closing arguments and can argue reasonable inferences based on the evidence, but even when grounded in an inference from the evidence, a prosecutorial statement can be impermissible vouching if it places the prestige of the government behind the witness by providing personal assurances of a witness’ veracity. In U.S. v. Kerr (9th Cir.) (1992) 981 F.2d 1050, 1053, “a prosecutor has no business telling the jury his individual impressions of the evidence.” Vouching is dangerous precisely because a jury “may be inclined to give weight to the prosecutor’s opinion in assessing the credibility of witnesses instead of making the independent judgement of credibility to which the defendant is entitled.” “It is up to the jury – and not the prosecutor – to determine the credibility of a witness testimony.”
    • The prosecutor’s vouching for the credibility of witnesses and expressing personal opinion concerning guilt of the accused presented two dangers: conveying an impression of evidence not presented to the jury, but known to the prosecutor, thus jeopardizing the defendant’s positive right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the government and may induce the jury to trust the government’s judgment rather than it’s own view of the evidence.” See Berger v. United States 295 U.S. 88-89.
    • The court noted that “the ethical bar is set higher for the prosecutor than for the criminal defense lawyer, a proposition that has been clear for at least 7 decades (see Berger v. U.S. (1935) 295 U.S. 78-88 and also U.S. v. Modica (1981) 663 Eps 2d 1173 and the ABA Standard for Criminal Justice §3-5.8(b).) The difference is that a private lawyer’s impropriety carries no implication of official governmental support. The court stated that prosecutors occupy a different and special place in the criminal justice system and the prosecutor’s role as representative of the government demands the exercise of better restraint and judgment than defense attorneys.
  2. ANY REFERENCE TO FACTS NOT IN EVIDENCE
    See U.S. v. Weatherspoon, supra. (Exhibit “A”) “It is axiomatic that counsel may not state or assume facts in argument that are not in evidence. See People v. Stankewitz (1990) 51 Cal.3d 72 @ 102, where defense counsel argued that the jury should give great consideration to the fact that certain people were absent from trial when they were available, inferring that there were 3 other potential witnesses. The prosecutor objected, noting there was “no evidence” in the record indicating the witnesses were available. The California Supreme Court held that counsel cannot make remarks in argument that are unsupported by the record evidence. Also see U.S. v. Ivy 83 F 3rd 1266 (1996) in which prosecutor claimed in closing that trial witness delivered drugs to Defendant although no testimony occurred to that effect. U.S. v. Molina-Guevara 96 F 3rd 698 (3rd Circuit) where prosecutor, in closing, informed jury of other potential witnesses, even though not called.
  3. IMPROPER FOR PROSECUTOR TO ASK DEFENDANT (OR ANY WITNESS) IF “OTHER WITNESSES ARE LYING”.
    In People v. Zambrano (2004) 124 Cal.App. 4th 228, a prosecutor’s “were they lying” questions to the defendant were improper…because they sought defendant’s inadmissible lay opinion about the officers’ veracity, invaded the province of the jury to determine the credibility question, and were irrelevant to any issue in the case.” The court held that the questioning was objectionable and misconduct.
  4. DISPARAGING REMARKS ABOUT DEFENSE COUNSEL AND/OR DEFENSE “TACTICS”
    U.S. v. Hickman 113 F 3rd 499 (4th cir. 1997). Improper for prosecution closing by indicating Defense counsel had “coached” several Defense witnesses. It is improper to accuse defense witnesses of perjury or to suggest jury should consider integrity of prosecutor’s office in assessing credibility of prosecution witnesses. People v. Ellis (1966) 65 Cal.2d 529, 539; People v. Perez (1962) 58 Cal. 2d 29; People v. Reese (1963) 200 Ca2d, 43, 146-147. Improper and misconduct for the prosecutor to impugn the integrity of defense counsel. People v. Bain (1971) 5 Cal. 3d 839, 847. People v. McCracken (1952) 39 Cal.2d 336, 348 (“what some people won’t do for a fee”). People v. O’Farrell (1958) 161 C.A.2d 13, 19. (Defense attorneys say “for a reasonable fee, I will give you reasonable doubt. (People v. Pick (1981) 114 C.A.3d 824). Defense counsel has no obligation to ascertain or present the truth.
  5. APPEALS TO PASSION, PREJUDICE AND FEARS
    Mendoza (1974) 37 C.A3d at 726. “Take child molesters off the street. Children are killed everyday and it is small minded people like the defendant who sexually molest everyday.” In urging the jury to keep him off the streets the prosecutor implied that the jury should consider punishment as well as guilt or innocence. Punishment is a court determination. U.S. v. Manning 23 F.3rd 570. Prosecutor urged jury to “take responsibility for yourselves, take responsibility for your community.” The prosecutor can not invite the jury to convict based on protecting society or on any grounds other than those presented by the evidence. See People v. Mendoza (1974) 37 C.A. 3d 717, 727. People v. Purris (1963) 60 Cal.2d 323, 343. The prosecution can not make emotional appeal, e.g., that the jurors have the power to enforce the law and to help victims. People v. Turner (1983) 145 C.A. 3d 672. The prosecutor can not invite the jury to convict in order to deter crime. U.S. v. Lester (9th Cir., 1984) 749 F.2d 1288. Prosecutor said in his closing remarks that every man should choose between good and evil: conjuring religious symbolism. U.S. v. Codero 67 F.3rd 1002 (1st cir. 1995). (also People v. Pitts, 223 Cal.App.3rd 606 (1990))
  6. ARGUMENT THAT A DISSENT OF ONLY ONE JUROR WOULD WIPE OUT MANY MONTH’S OF EVERYONE’S EFFORT
    People v. Pitts (1990) 223 Cal.App 3rd 606 . Misconduct when prosecutor made argument that if one person dissented, it would wipe out many months of everyone’s effort as if it never existed.
  7. EXALTING THE ROLE OF THE PROSECUTOR
    United States v. Castle 77 F.3rd 1497 (1996) Prosecutor’s attempt to solicit testimony from witness that she is “prosecutor of the year” was improper.