NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 3: Capital Punishment Handbook: Guilt Phase Issues

        3.3  Prosecutor’s Inappropriate Statements

272.4 Prosecutor Misconduct During Summation/Closing Argument The Supreme Court has held that inappropriate statements by a prosecuting attorney–particularly during closing argument–may warrant reversal. In Donnelly v. DeChristoforo, 416 U.S. 637 (1974), the Court held that in federal habeas actions, improper jury argument by the state does not present a claim of constitutional magnitude unless it is so prejudicial that the petitioner’s trial was fundamentally unfair within the meaning of the Fourteenth Amendment’s Due Process Clause. To establish prejudice, the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that, in all probability, but for the remarks, no conviction would have occurred. Thus, in Darden v. Wainwright, 477 U.S. 168, 182 (1986), the Court rejected a claim of prosecutorial misconduct where the prosecutor’s comments “did not manipulate or misstate the evidence, nor . . . implicate other specific rights of the accused, such as the right to counsel or to remain silent.” In addition, the Court noted that the weight of the evidence against the defendant was heavy, reducing the likelihood that the jury’s decision was influenced by the prosecutor’s argument. Id.

Portuondo v. Agard, 529 U.S. 61 (2000) (reversing second circuit and holding, in a noncapital case, that prosecutor’s comments that defendant’s presence allowed him to tailor his testimony did not violate rights to confrontation, to testify, and to due process).

Greer v. Miller, 483 U.S. 756 (1987) (holding prosecutor’s improper question did not constitute due process violation because not of sufficient significance to deny defendant’s right to fair trial).

Darden v. Wainwright, 477 U.S. 168 (1986) (holding prosecutor’s closing argument at guilt phase, sharing personal views that defendant is an “animal,” does not warrant habeas relief because does not render trial fundamentally unfair).

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (holding improper prosecutorial comment during closing argument of guilt phase of trial not basis for federal habeas relief unless prejudice amounting to denial of constitutional due process is shown).

Griffin v. California, 380 U.S. 609 (1965) (prohibiting prosecutor from commenting on defendant’s decision not to testify).

Berger v. United States, 295 U.S. 78 (1935) (reversing conviction for improper prosecutorial argument).

Drayden v. White, 232 F.3d 704 (9th Cir. 2000) (holding that there was prosecutorial misconduct where prosecutor during closing argument recited soliloquy in deceased victim’s voice, but that misconduct did not rise to a due process violation because remarks did not render trial fundamentally unfair), cert. denied, 532 U.S. 984 (2001). 

Furman v. Wood, 190 F.3d 1002 (9th Cir. 1999) (rejecting habeas claim for relief because although some of prosecutor’s comments were improper, jury was told comments were not evidence, and evidence against defendant was strong).

Ortiz-Sandoval v. Gomez, 81 F.3d 891 (9th Cir. 1996) (denying relief because, although prosecutor’s closing argument was improper, it did not render trial fundamentally unfair).

Hardnett v. Marshall, 25 F.3d 875 (9th Cir. 1994) (holding improper to introduce testimony of witness who could not be cross-examined because self-incrimination privilege invoked, but harmless on the facts), cert. denied, 513 U.S. 1130 (1995).

Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir. 1993) (holding prosecutor’s sole comment on defendant’s failure to testify not sufficiently harmful to constitute constitutional error), cert. denied, 510 U.S. 1191 (1994).

Northern Mariana Islands v. Mendiola, 976 F.2d 475 (9th Cir. 1992) (finding prosecutor’s comments regarding defendant’s future dangerousness improper prosecutorial conduct at guilt phase where evidence against defendant not strong).

Blazak v. Ricketts, 971 F.2d 1408 (9th Cir. 1992) (finding prosecutor’s repeated references to defense as “phony,” during closing argument, unconstitutional prosecutorial misconduct).

Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988) (holding prosecutor’s emotionchoked voice and expression of personal opinions may have approached misconduct but insufficient prejudice shown), cert. denied, 490 U.S. 1059 (1989).

Lincoln v. Sunn, 807 F.2d 805 (9th Cir. 1987) (holding prosecutor’s comments regarding defendant’s failure to testify mandate reversal if: they are extensive, stress an inference of guilt from the silence and there is evidence that could have supported acquittal).

Bonin v. Vasquez, 794 F. Supp. 957 (C.D. Cal. 1992) (holding not misconduct for prosecutor to intentionally elicit testimony that petitioner admitted killing twenty young males in addition the killings he was charged with), aff’d, 59 F.3d 815 (9th Cir.1995), cert. denied, 516 U.S. 1051 (1996).

United States v. Cannon, 88 F.3d 1495 (8th Cir. 1996) (holding prosecutor’s reference to African-Americans as “bad people” and calling attention to fact that defendants were not locals was improper).

Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994) (holding prosecutor’s “improper appeals to societal alarm” and requests for “vengeance for the community to set an example” were unwarranted but not violation of due process), cert. denied, 515 U.S. 1135 (1995).

Drew v. Collins, 964 F.2d 411 (5th Cir. 1992) (holding not constitutional violation where prosecutor asked jury to return a verdict quickly to avoid insulting the victim’s family), cert. denied, 509 U.S. 925 (1993).

Felde v. Blackburn, 795 F.2d 400 (5th Cir. 1986) (holding no prosecutorial misconduct in prosecution’s references to evidence not in record, and warning defendant might escape if found not guilty by reason of insanity), cert. denied, 484 U.S. 873 (1987).