FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 3 - CHAPTER 20
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Chapter 20: Prosecutor Duties And Misconduct At Trial

    20.1  Duty Of Prosecutor To Ensure Fundamentally Fair Trials
    20.2  Prosecutor Misconduct During Argument To Jury Or Summation
    20.3  Credibility Of Witnesses: Improper For Prosecutor To Force Defendant To Evaluate The Credibility Of Prosecution Witnesses
    20.4  Prosecutor Misconduct: Improper Vouching For Witness
    20.5  Prosecutor Misconduct: Duty To Correct Misstatements Made By Prosecution Witnesses
    20.6  Prosecution Misconduct: Question Assuming As True A Fact Known To Be False
    20.7  Suggestive Questions As Prosecutorial Misconduct
    20.8  Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias
    20.9  Prosecutor Misconduct: Death Penalty
    20.10 Prosecution Misconduct: Premature Display Of Physical Evidence
    20.11 Prosecutor Comment On Assertion Of Marital Privilege
    20.12 Prosecutor Misconduct During Argument: Comment On Failure Of Defendant To Testify

    20.1    Duty Of Prosecutor To Ensure Fundamentally Fair Trials

PRACTICE NOTE: "The prosecutor, as the agent of the people and the State, has the unique duty to ensure fundamentally fair trials by seeking not only to convict, but also to vindicate the truth and to administer justice." (Thompson v. Calderon (9th Cir. 1998) 120 F3d 1045, 1058; see also United States v. Cruz-Garcia (9th Cir. 2003) 344 F3d 951 [court found it "troubling" that the prosecutor argued that the witness was too dumb to deal drugs on his own when it had argued for the exclusion of evidence showing that the witness had done precisely that].) The Supreme Court recognized, over sixty years ago, that:

Because the prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer ..., it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate method to bring about one.

(Berger v. U.S. (1935) 295 US 78, 88 [55 SCt 629; 79 LEd2d 1314].)

    20.2    Prosecutor Misconduct During Argument To Jury Or Summation

    See FORECITE National™ Chapter 272: Summation/Closing Argument To Jury.

    20.4    Prosecutor Misconduct: Improper Vouching For Witness

    See FORECITE National™ 272.4.5 [Prosecutor Misconduct: Improper Vouching For Witness].

    20.7    Suggestive Questions As Prosecutorial Misconduct

    See The Shellow Instructions [Suggestive Questions As Prosecutorial Misconduct].

    20.8    Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias

    See The Shellow Instructions [Prosecution Misconduct: Refusal To Follow Exculpatory Leads As Evidence Of Bias].

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   20.9    Prosecutor Misconduct: Death Penalty

    See Capital Punishment Handbook Section 4.4 [Prosecutorial Misconduct].

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   20.10    Prosecution Misconduct: Premature Display Of Physical Evidence  

PRACTICE NOTE: "The premature display of a tangible article in the courtroom may be unduly inflammatory even though it is later admitted. Hence, such an article should not be exposed to view until it is formally offered for admission in evidence. Moreover, the offer must be made in good faith. If there is any doubt as to the admissibility of the article, the display and tender should be made outside the presence of the jury." (Advisory Committee commentary to ABA Standards, The Prosecution Function § 5.6.)

    See also FORECITE National™ 25.2.2 [Cautionary Procedures and Instructions Regarding Exhibits Marked But Not Admitted Into Evidence].

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   20.11    Prosecutor Comment On Assertion Of Marital Privilege

PRACTICE NOTE: There is general agreement that it is improper to comment adversely on a defendant's exercise of the marital privilege, or to permit the jury to draw adverse inferences. (United States v. Sanchez, 176 F3d 1214, 1223 (9th Cir. 1999); see also United States v. Tapia-Lopez, 521 F2d 582, 584 (9th Cir. 1975) [improper for prosecutor to suggest that defendant's husband's testimony would be favorable for the government where defendant held marital privilege to keep husband from testifying]; Courtney v. United States, 390 F2d 521, 528-529 (9th Cir. 1968) [improper for prosecutor to elicit testimony that defendant married to prevent wife from testifying].) Other circuits are in accord. (See United States v. Golding, 168 F3d 700 (4th Cir. 1999) [improper for prosecutor to comment about wife not testifying when she has a privilege not to testify]; United States v. Morris, 988 F2d 1335, 1338-1341 (4th Cir. 1993) [improper for prosecutor to ask defendant's wife whether she had invoked her marital privilege before the grand jury]; United States v. Chapman, 866 F.2d 1326, 1334 (11th Cir. 1989) [improper for prosecutor to comment on a spouse's assertion of the marital privilege]; United States v. Smith, 591 F2d 1105, 1111 (5th Cir. 1979) [improper for prosecutor to argue that defendant's failure to produce his wife as witness created inference that her testimony would be unfavorable]; see also 8 Wigmore, Evidence § 2243; McCormick, Evidence § 66 at 255 (4th ed. 1992).)

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    20.12    Prosecutor Misconduct During Argument: Comment On Failure Of Defendant To Testify    

    See also FORECITE National™ 25.14.1 Adoptive Admissions (Pre-Trial Silence/Doyle): General Issues and 25.14.2 Adoptive Admission (Pre-Trial Silence/Doyle): Doyle Error (Comment On Defendant’s Pre-Trial Silence).

    See also FORECITE National™ 272.4.10.2 Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle).