The vagaries of prosecutorial misconduct

Prosecutorial misconduct is a shifting, amorphous concept. The test --- whether the statements were (1) improper, and (2) flagrant --- requires the court to apply not one but two highly subjective terms, both of which are themselves defined by multi-factor tests. Then there is another test for whether improper-but-not-flagrant conduct should result in reversal. All of this is filtered through a natural bias toward upholding convictions, resulting in a legal objection that is difficult to apply and a claim on appeal that seems unlikely to prevail.

Yesterday's unpublished opinion in United States v. Demetrius Joiner is unlikely to change prosecutorial misconduct's reputation as a difficult claim. But it does provide a nice refresher on possible objections that defense counsel can make at trial. Mr. Joiner was convicted of being a felon in possession of a firearm, and his trial defense was that he never actually possessed the weapon. His case was close, resulting in a mistrial followed by a second trial at which he was convicted. He raised four objections to potentially improper statements by the prosecution:

The prosecutor asked Mr. Joiner to comment on the credibility of the government's witnesses. Mr. Joiner testified that he had not stolen the firearm in question, contrary to assertions by the government's police-officer witnesses. The government then asked whether Mr. Joiner was "saying here to the jury that [the officers] lied on that day," and "do you believe that [the officers made this up on you?" These questions were "improper," because it is the jury's job to judge the credibility of testimony, not the witness's. Such questions are only appropriate where a defendant actually testifies that someone else is lying, which did not occur here. Although improper, these questions were not "flagrant," largely because the court considered the whole trial to be "a credibility contest between Joiner and the officers," and thus, presumably, the jury was already primed to consider this question.

The prosecutor improperly vouched for the officers' credibility. In examining the officers, the prosecutor asked whether they had any bias against Joiner or any reason to falsely accuse him of lying." During closing arguments, the prosecutor told the jury that the officers had no motivation to lie. This was not improper. The prosecutor did not state that he "personally found the officers to be credible," nor did he suggest that "he knew facts regarding the officers' credibility that were not revealed to the jury."

The prosecutor made improper statements regarding Mr. Joiner's credibility during his closing argument. The prosecutor told the jury at closing that Mr. Joiner lied and would "lie to you about anything to get out of this situation." These statements were improper. A prosecutor may only tell the jury that a defendant is a liar if the prosecutor references specific evidence or testimony produced at trial, emphasizing discrepancies between the defendant's testimony and the record. Although improper, the statements were not flagrant. Here, the panel suggests that a defendant would have difficulty ever winning such a claim, because the reason it is not flagrant is that there is not much difference between saying someone is a liar and saying that the evidence suggests someone is a liar. Why then consider this improper in the first place?

The prosecutor improperly shifted the burden of proof by implying that Mr. Joiner was obligated to produce a certain witness at trial. On cross examination, the prosecution asked Mr. Joiner where a potentially exculpatory witness was, and noted that the witness was not there to make a certain admission. At closing, the prosecutor asked the jury a similar question. These questions were not improper, because a prosecutor is free to comment on the failure to call a witness so long as the prosecutor does not "suggest that the defendant had the burden of proof or any obligation to produce evidence to prove his innocence."

Faced with two improper-but-not-flagrant actions by the prosecutor, the panel declined to overturn the conviction. But although these objections did not carry the day for Mr. Joiner, they may benefit future defendants.