PROSECUTORIAL MISCONDUCT

 

IMPROPER QUESTIONING

 

Questioning defendant about his homosexuality and the criminal records of persons with whom defendant resided, introducing evidence of defendant's propensity to commit a crime, eliciting testimony from a police officer which bolstered the alleged victim's testimony, and eliciting "expert"testimony about the Child Sexual Abuse Accommodation Syndrome from a police officer not qualified as an expert, deprived defendant of a fair trial.

 

Prosecutorial Misconduct Deprived Defendant of a Fair Trial

 

The Fourth Department, exercising its "interest of justice" jurisdiction, over a dissent, determined the misconduct of the prosecutor warranted a new trial.  The prosecutor improperly questioned defendant about his homosexuality and the criminal records of persons with whom defendant resided, The prosecutor further improperly introduced evidence of defendant's propensity to commit a crime and elicited bolstering testimony from a police officer about the Child Sexual Abuse Accommodation Syndrome without qualifying the officer as an expert in that area. With respect to the police officer's testimony, the court wrote:

 

...[T]he prosecutor improperly elicited testimony from a police investigator that he had received training establishing that underaged victims of sexual crimes frequently disclosed the crime in minimal detail at first, and provided more thorough and intimate descriptions of the event later. That testimony dovetailed with the People's position concerning the way in which the victim revealed this incident ... . Thus, we conclude that the investigator's testimony "was the precise equivalent of affirming the credibility of the People's witness through the vehicle of an opinion that [sexual abuse is frequently committed] as the victim had related. It is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not. The jurors were fully capable of using their ordinary experience to test the credibility of the victim-witness; and the receipt of the [investigator]'s testimony in this regard was improper and indeed constituted usurpation of the function of the jury . . . Where, as here, the sole reason for questioning the expert' witness is to bolster the testimony of another witness (here the victim) by explaining that his version of the events is more believable than the defendant's, the expert's' testimony is equivalent to an opinion that the defendant is guilty" (People v Ciaccio, 47 NY2d 431, 439), and the prosecutor improperly elicited that testimony.

 

Moreover, by eliciting that testimony, the prosecutor improperly introduced expert testimony regarding the Child Sexual Abuse Accommodation Syndrome. Although such testimony is admissible in certain situations ..., here it was elicited from a police investigator under the guise that it was part of the investigator's training. The prosecutor failed to lay a foundation establishing that the investigator was qualified to provide such testimony .... Furthermore, the evidence does not establish that the investigator had "extensive training and experience [that] rendered [him] qualified to provide such [testimony]" ... . People v Scheidelman, 2015 NY Slip Op 01111, 4th Dept 2-6-15

 

 

"The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn ... .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor's cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney's office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. ... . ... Similarly, the prosecutor's questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone ...".

 

 

 

Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged---Conviction Reversed in the Interest of Justice

 

The Second Department determined defendant's weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its "interest of justice" power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant's testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn "restaurant closing-time" information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

 

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn ... .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor's cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney's office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. ... . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop ... .

 

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial ... . Similarly, the prosecutor's questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone ... . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion ... .

 

In addition, the prosecutor's statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already "played out this exact scenario in his mind . . . every time he left his house with that gun" was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest ... .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15

 

 

IMPROPER REMARKS IN SUMMATION

 

The prosecutor's characterizing (in a single-witness case) the People's case as the "truth," reversing the burden of proof (suggesting defendant must demonstrate why the complainant would lie), vouching for the truth of the complainant, making evidentiary claims not supported by the record, acting as an unsworn witness, and appealing to the juror's sympathies by describing the complainant's coming forward as a brave act for which the complainant should be rewarded (by a conviction), deprived defendant of a fair trial. 

 

Prosecutorial Misconduct Warranted a New Trial

 

The Fourth Department reversed defendant's conviction and ordered a new trial because of the prosecutor's misconduct.  The prosecutor shifted the burden of proof, vouched for the single witness, and appealed to the sympathies of the jury:

 

The prosecutor began her summation by improperly characterizing the People's case as "the truth" and denigrating the defense as a diversion ,,, . In addition, the prosecutor implied that defendant bore the burden of proving that the complainant had a motive to lie, thereby impermissibly shifting the burden of proof to defendant ... .

 

Perhaps most egregiously in this one-witness case where credibility was paramount, the prosecutor repeatedly and improperly vouched for the veracity of the complainant ... . The prosecutor asked the jury "to listen carefully to the 911 call. It may not clearly state what happened, but statements that [the complainant] made like, I'm bugging, but I tried to catch him, that's why I left,' are examples of the ring of truth." Defense counsel objected, and the objection was sustained. Nonetheless, the prosecutor continued: "I submit to you the (complainant's statements) are truthful." The prosecutor also bolstered the complainant's credibility by making herself an unsworn witness in the case ... . In addressing inconsistencies between the complainant's testimony and his earlier statement to the police, the prosecutor argued that the complainant made only "[o]ne inconsistent statement, from talking to the police and talking to me" (emphasis added). The prosecutor's remark suggests that the complainant made numerous prior consistent statements to the police and to the prosecutor herself, and we conclude that such suggestion has no basis in the record ... .

 

The prosecutor also improperly appealed to the sympathies of the jury by extolling the complainant's "bravery" in calling the police and testifying against defendant ... . The prosecutor told the jurors that it was "not an easy decision" for complainant to call the police, and asked them to "hang [their] hat on . . . [the complainant]'s bravery by coming in front of you." The prosecutor argued that the neighborhood where the crime occurred and where the complainant's family worked "is an anti-police atmosphere." After defense counsel's objection to that comment was sustained, the prosecutor protested that "it was a statement in evidence" when, in fact, that testimony had been stricken from the record, and County Court had specifically warned the prosecutor not "to go into what this area is like." The prosecutor nonetheless continued her summation by asking the jurors to "[u]se [their] common sense to think about whether or not this happened and why there's no other witnesses" (emphasis added). The prosecutor argued that the complainant "is someone who knows the game. He knows the neighborhood, and he knows what would have been the easy thing to do, and I submit to you that easy thing to do was not to call 911 that day." She continued: "So please tell [the complainant] he did the right thing by calling 911 and telling them one man's word is enough. Tell them that he is brave to report this." The prosecutor ended her summation by urging the jury to "tell [the complainant] that his truthfulness is enough to convict the defendant" by returning a guilty verdict. People v Griffin, 2015 NY Slip op 01346, 4th Dept 2-13-15

 

 

 

Prosecutor cannot imply that defendant's communicating with an attorney manifested a consciousness of guilt.

 

Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)

 

The Second department noted that the prosecutor's comment implying that communicating with an attorney manifests a consciousness of guilt was error:

 

In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People's theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: "[I]f you didn't do anything and you don't know that detectives are looking for you in respect to a shooting, why did you get an attorney?" The defendant correctly contends that this comment was improper, since the defendant's retention of an attorney was not probative of her consciousness of guilt ... . Nevertheless, contrary to the defendant's contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal ... . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15

 

 

 

"During summation, the prosecutor ... improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop ... . Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial ... . ...  It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion ...".

 

 

Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged---Conviction Reversed in the Interest of Justice

 

The Second Department determined defendant's weapon-possession conviction must be reversed because of the misconduct of the prosecutor.  Although the errors were not preserved by objection, the court invoked its "interest of justice" power to reach the issue.  The prosecutor functioned as an unsworn witness by indicating, during cross-examination of the defendant, that her office had called a restaurant to find out the closing time and using that information to impeach the defendant's testimony. The prosecutor, in her summation, accused the defendant of lying based on the unsworn "restaurant closing-time" information she had put on the record.  In addition, the prosecutor suggested that defendant intended to use the weapon to harm someone and had committed multiple gun-possession offenses, unsupported claims not relevant to the charged offense:

 

The prosecutor improperly functioned as an unsworn witness when she cross-examined the defendant regarding the closing time of a restaurant in Brooklyn ... .  The police officers who conducted the traffic stop testified on their direct examinations that the traffic stop occurred at 9:35 p.m. On his direct examination, in contrast, the defendant testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m., while he and the other occupants of the vehicle were on their way to a restaurant in Brooklyn. During the prosecutor's cross-examination of the defendant, she improperly suggested facts not in evidence when she implied that the District Attorney's office had called the restaurant to ascertain its hours of operation, and asked the defendant whether he testified that the traffic stop occurred between 8:00 p.m. and 8:30 p.m. because he knew that the restaurant was not open at 9:35 p.m. ... . During summation, the prosecutor again improperly implied, without having submitted any evidence about the closing time of the restaurant, that the defendant had lied about what he was doing at the time of the traffic stop ... .

 

Further, the prosecutor made improper remarks during summation which suggested that the defendant possessed the weapon with an intent to use it to harm someone, even though this was not an element of the crime for which the defendant was on trial ... . Similarly, the prosecutor's questioning of the defendant about one of his tattoos was improper and led to the inflammatory and unsupported inference that the defendant had previously used the weapon to harm someone ... . It was also improper for the prosecutor to argue during summation that the defendant had learned certain information during the pretrial hearing even though there was no evidence to support this assertion ... .

 

In addition, the prosecutor's statement during summation that the defendant did not make any sudden movements during the traffic stop because he had already "played out this exact scenario in his mind . . . every time he left his house with that gun" was improper speculation, without any basis in the record, that the defendant had committed multiple gun possession offenses prior to the subject incident which led to his arrest ... .People v Rowley, 2015 NY Slip Op 02988, 2nd Dept 4-8-15