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272.4 Prosecutor Misconduct During Summation/Closing Argument

    272.4.1 Varieties Of Prosecutor Misconduct During Summation/Closing Argument
    272.4.2 Prosecutor Misconduct During Summation/Closing Argument: Improper Emotional Appeals
    272.4.3 Prosecutor Misconduct During Summation/Closing Argument: Reference To Inadmissible Evidence
    272.4.4 Prosecutor Misconduct Summation/Closing Argument: Reference To Facts That Are Never Proven
    272.4.5 Prosecutor Misconduct: Improper Vouching For Witness
    272.4.6 Defense Counsel's Comments May Open The Door To Inflammatory Prosecutorial Comments During Summation/Closing Argument
    272.4.7 Prosecutor Misconduct During Summation/Closing Argument: Delivering Soliloquy In Victim's Voice
    272.4.8 Prosecutor Misconduct During Summation/Closing Argument: Invoking Religious Authority
    272.4.9 Prosecutor Misconduct: Improper To Imply That Juror Oath Requires Conviction
    272.4.10 Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent - Whether Prosecutorial Intent Is Required
                    272.4.10.1    Violation Of Fifth Amendment: Implied Comment Improper
                    272.4.10.2 Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)
    272.4.11 Prosecutorial Misconduct: Re-Enactment Of Crime During Closing Argument Using Complaining Witness
    272.4.12 Prosecutor Misconduct: Asking Jury To Make Inferences Known To Be False
    272.4.13 Prosecutorial Misconduct: Suggesting That Defense Expert's Opinion Is Tainted Because Witness Received A Fee
    272.4.14 Prosecutorial Misconduct: Telling Jury That Defendant Lied
    272.4.15 Double Jeopardy: Mistrial Resulting From Prosecutorial Misconduct Intended To Thwart An Acquittal
    272.4.16 Prosecution Misconduct: Misstatements Or Law Or Fact

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272.4.1 Varieties Of Prosecutor Misconduct During Summation/Closing Argument

PRACTICE NOTE: See Capital Punishment Handbook [3.3 Prosecutor's Inappropriate Statements].

See Capital Punishment Handbook [4.4 Prosecutorial Misconduct].

See A Manual On Jury Trial Procedure [3.19 Closing Argument].

See NCJIC 4.2.2.3 [Duty To Object: Prosecutorial Misstatements Of Law].

RESEARCH NOTES:

See Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.2 Prosecutor Misconduct During Summation/Closing Argument: Improper Emotional Appeals

RATIONALE: If improper emotional appeals are made by the prosecution, it may be appropriate to admonish the jury to disregard the improper argument.

POINTS AND AUTHORITIES: If the misconduct is sufficiently eggregious it may justify a mistrial. (See Wharton’s Criminal Evidence (West, 14th ed. 1986) § 4:3, pp. 282-96.) However, if a mistrial is not granted, a strong admonishment to disregard the improper argument may be appropriate. (See U.S. v. Moreno (1st Cir. 1993) 991 F2d 943, 948; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 11:4.)

See NCJIC 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.5 a. Inflammatory Comments: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

SAMPLE INSTRUCTION:

I must give you some instructions to disregard some of the things that were said in the opening statement. There were references to violence in the area, to other incidents in the area than those that are the subject matter of this trial. I will instruct you to disregard all of those references. Some were made very early in the opening statement, others were made in the course of it and toward the end of the opening statement. We are here to try on the evidence with respect to the charges against these defendants, only the charges against these defendants. It is not your function or the function of the court or anyone else to be concerned about anything other than the charges against these defendants and the evidence bearing upon that. You will erase from your mind the arguments about other violence, and the phrase "senseless killings" was used. Those are not matters to be considered by you as you weigh and evaluate the evidence that relates to this case.

[Source: U.S. v. Moreno (1st Cir. 1993) 991 F2d 943, 948.]

ADDITIONAL SAMPLE INSTRUCTIONS: For additional sample instructions, see NCJIC 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

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272.4.3 Prosecutor Misconduct During Summation/Closing Argument: Reference To Inadmissible Evidence

PRACTICE NOTE: Reference to inadmissible evidence during the opening statement is improper. (See Rule 3.4(e) American Bar Association, Annotated Model Rules of Professional Conduct (ABA, 3rd ed., 1996) DR 1--106(C)(1), ABA Model Code of Professional Responsibility.) If such misconduct cannot be prevented with an in limine motion, and the improper reference is made, a motion for mistrial should be made. Failing that, counsel should ask for a curative instruction to disregard the improper statements. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 11:1; see also Virgin Islands v. Turner (3rd Cir. 1968) 409 F2d 102, 103; U.S. v. Jozwiak (7th Cir. 1992) 954 F2d 458, 460; U.S. v. Eason (11th Cir. 1990) 920 F2d 731, 734.)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.4 Prosecutor Misconduct Summation/Closing Argument: Reference To Facts That Are Never Proven

PRACTICE NOTE: During the opening statement, the prosecution may refer to evidence which it does not produce during the trial, leaving the jury to make unsubstantiated inferences. The effect of this prosecutorial misconduct may be significant enough to justify moving for a mistrial or, in the alternative, for an objection and an instruction to the jury to disregard the improper reference. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) §11:2; U.S. v. West (6th Cir. 1973) 486 F2d 468, 471; U.S. v. Novak (10th Cir. 1990) 918 F2d 107, 109; U.S. v. Thomas (DC Cir. 1997) 114 F3d 228, 249; Jones v. U.S. (DC Cir. 1964) 338 F.2d 553, 554.)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.5 Prosecutor Misconduct: Improper Vouching For Witness

RATIONALE: The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused poses two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s 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 its own view of the evidence.

POINTS AND AUTHORITIES: Prosecutorial vouching for the credibility of witnesses is impermissible. (See e.g., U.S. v. Young (1985) 470 US 1, 18-19 [105 SCt 1038; 84 LEd2d 1]; U.S. v. DiLoreto (3rd Cir 1989) 888 F2d 996, 998 [prosecutor’s statement that government "does not put liars on the stand" required reversal]; Maurer v. Department of Corrections (8th Cir. 1994) 32 F3d 1286, 1290-91; U.S. v. Kerr (9th Cir. 1992) 981 F2d 1050, 1053 [prosecutor told jury that "he didn’t think" the witness was lying]; U.S. v. Smith (9th Cir. 1992) 962 F2d 923, 933 [plain error for prosecutor to argue that his job was to present the truth to the jury and he would prosecute anybody for perjury who told a lie]; U.S. v. Simtob (9th Cir. 1990) 901 F2d 799, 805 [prosecutor’s offer to immunize witness for any false statements he may have previously made was improper vouching for the credibility of the witness]; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 17:6.)

Prosecutorial vouching for the credibility of witnesses who have received plea agreements is also impermissible. (U.S. v. Carroll (6th Cir. 1994) 26 F3d 1380, 1389.)

In case of impermissible vouching, counsel should object and motion for a mistrial. Where appropriate, counsel may request a curative instruction. For a 9-prong test as to whether the vouching was improper see U.S. v. Rudberg (9th Cir. 1977) 122 F3d 1199, 1204.

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

SAMPLE INSTRUCTION:

I instruct you that the prosecutor's statement of belief in the credibility of witness _______ was grossly improper and uncalled for. You must disregard it and erase it from your mind as though you had never heard it said. You alone have the duty to decide the credibility of the witnesses.

[Source: NCJIC.]

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272.4.6 Defense Counsel's Comments May Open The Door To Inflammatory Prosecutorial Comments During Summation/Closing Argument

CAVEAT: Beware Of Opening The Door. Closing arguments by the defense counsel, which make accusatory and inflammatory attacks on opposing counsel, may open the door to rebuttal by the prosecution which may be far more damaging to the defense’s case. Therefore, it is wise to avoid improper closing arguments. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 1999) § 17:10; see also U.S. v. Robinson (1988) 485 US 25 [108 SCt 864; 99 LEd2d 23].)

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.7 Prosecutor Misconduct During Summation/Closing Argument: Delivering Soliloquy In Victim's Voice

PRACTICE NOTE: Drayden v. White (9th Cir. 2000) 232 F3d 704, 713, held that the prosecutor committed misconduct when he "delivered a soliloquy in the voice of the victim." He "inappropriately obscured the fact that his role is to vindicate the public's interest in punishing crime, not to exact revenge on behalf of an individual victim." Such conduct "seriously risked manipulating and misstating the evidence by creating a fictitious character based on the dead victim and by 'testifying' in the voice of the character as if he had been a percipient witness."

See NCJIC 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.5 a. Inflammatory Comments: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.8 Prosecutor Misconduct During Summation/Closing Argument: Invoking Religious Authority

PRACTICE NOTE: See Sandoval v. Calderon (9th Cir. 2000) 231 F3d 1140, 1150 [defendant was denied fair trial when prosecutor's closing argument invoked divine authority and paraphrased Bible passage as supporting imposition of death penalty].

See NCJIC 272.5.2 [Prosecutor Misconduct During Summation/Closing Argument: Curative Instruction].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Capital Punishment Handbook [3.3 a. Prosecutor’s Inappropriate Statements: General Principles And Authorities].

See also Capital Punishment Handbook [4.4 a. Prosecutorial Misconduct: General Principles And Authorities].

See also Capital Punishment Handbook [4.4.5 a. Inflammatory Comments: General Principles And Authorities].

See also A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

See also A Manual On Jury Trial Procedures [3.19B. Closing Argument: Response To Objectionable Closing Argument].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.9 Prosecutor Misconduct: Improper To Imply That Juror Oath Requires Conviction

PRACTICE NOTE: "[R]emarks implying that jurors will violate their oaths if they fail to convict are improper. [Citations.]" (State v. Pennington (NJ 1990) 575 A2d 816, 831 (superseded on other grounds); see also People v. Nelson (IL 2000) 737 NE2d 632, 639 [reversal for denial of fair trial even without objection at trial]; People v. Castaneda (IL 1998) 701 NE2d 1190, 1193 [remarks regarding a jury violating its oath by acquitting a defendant are inappropriate].) "‘[U]ltimate deductions from the evidence are for the jury to draw. Counsel may argue what deductions in his judgment the evidence would reasonably support, but under no circumstances is he warranted in offering dogmatic statements as to what the evidence proves.’ [Citation.]" (Redish v. State (FL 1988) 525 So2d 928, 930-31.)

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.10 Prosecutor Misconduct: Comment On 5th Amendment Right To Remain Silent – Whether Prosecutorial Intent Is Required

PRACTICE NOTE: Generally it is a violation of the accused's 5th Amendment privilege against self incrimination to comment on the accused's failure to testify at trial. (See cases cited in NCJIC 309.1.1 [Privilege Against Self Incrimination: Reliance On Silence].)

The federal courts and most state courts apply a test that looks at whether the remark was intended to be a comment on the defendant’s failure to testify and whether the jury would "naturally and necessarily" have understood the remark to be such. (See Smith v. State (MD 2001) 787 A2d 152.) However, Maryland has rejected this test, holding that the intent behind the prosecutorial comment is irrelevant to the question of whether a defendant’s constitutional right not to testify was infringed. Rather than adopt the "naturally and necessarily" test, Maryland uses a test which looks to whether the comment is "susceptible of the inference" that it was a comment on the defendant’s right to remain silent. (Ibid; see also Smith v. State (MD 1936) 182 A 287.)

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.10.1 Violation Of Fifth Amendment: Implied Comment Improper

PRACTICE NOTE: Griffin error is not limited to express comments on a defendant's failure to testify. (In re Dalton DEPUBLISHED (CA 2002) 98 CA4th 958, 961-63 [120 CR2d 266].) A mere suggestion that the jury may view a defendant's silence as evidence of guilt is sufficient. (See U.S. v. Robinson (88) 485 US 25, 32 [99 LEd2d 23; 108 SCt 864].) As noted by People v. Medina (CA 1995) 11 C4th 694, 755 [47 CR2d 165], "comments, either directly or indirectly, upon defendant's failure to testify in his defense" constitute Griffin error. In fact, even simple undue emphasis on the willingness of a prosecution witness to testify may constitute an implied comment on the defendant's failure to testify. (See People v. Guzman (CA 2000) 80 CA4th 1282 [92 CR2d 87].) Likewise, when a defendant has made it clear that he or she does not wish to testify, it is improper for the court to "put [him or her] on the stand to claim the 5th Amendment in the presence of the jury...." (People v. Lopez (CA 1999) 71 CA4th 1550, 1554 [84 CR2d 655]; see also People v. Mincey (CA 1992) 2 C4th 408, 440-42 [6 CR2d 822].)

It is equally repugnant to the protections afforded by the 5th Amendment to require a defendant to state, in the presence of the jury, whether he or she plans to testify. Public inquiry into these intentions places the defendant in a quandary: refuse to do so and permit the jury to draw adverse inferences or consent and relinquish a constitutional right. (See State v. Gray (MO 1973) 503 SW2d 457, 462 [judge's question to defendant in jury's presence about his intent to testify focused attention on the fact that the defendant was not going to testify and "transgressed ... defendant's constitutional right against self-incrimination."].)

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.10.2 Prosecutor Misconduct: Comment on Defendant's Exercise Of Right To Remain Silent Prior To Trial (Doyle)

See also NCJIC 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).

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272.4.11 Prosecutorial Misconduct: Re-Enactment Of Crime During Closing Argument Using Complaining Witness

PRACTICE NOTE: See Price v. Commonwealth (KY 2001) 59 SW3d 878 [prosecutor’s use of complaining witness in a re-enactment of a crime during closing argument is improper].

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.12 Prosecutor Misconduct: Asking Jury To Make Inferences Known To Be False

PRACTICE NOTE: See U.S. v. Blueford (9th Cir. 2002) 279 F3d 1084, 1090 [improper for government to propound inferences that it knows to be false, or has very strong reason to doubt]; see also U.S. v. Kojayan (9th Cir. 1993) 8 F3d 1315, 1318-19, 1321 [the difference between a lawyer "ask[ing] the jury to infer only things that he believed in good faith might be true" and making "factual assertions he well knew were untrue" is "the difference between fair advocacy and misconduct"]; U.S. v. Udechukwu (1st Cir. 1993) 11 F3d 1101, 1106 ["[i]t is improper to imply reliance on a fact that the prosecutor knows to be untrue"]; U.S. v. Valentine (2nd Cir. 1987) 820 F2d 565, 566 [finding prejudicial misconduct where "the prosecutor misrepresented, at least implicitly, the substance of the testimony of several grand jury witnesses"].)

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.13 Prosecutorial Misconduct: Suggesting That Defense Expert's Opinion Is Tainted Because Witness Received A Fee

See NCJIC 29.2.15 [Expert: Explanatory Instruction Regarding Receipt Of Monetary Fee By Expert Witness].

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272.4.14 Prosecutorial Misconduct: Telling Jury That Defendant Lied

PRACTICE NOTE: In Williams v. State (DE 2002) 803 A2d 927 the prosecutor committed misconduct in closing arguments that characterized the defendant as "lying" and suggested the jury could acquit only if they found the state’s witnesses to be lying. Additionally, the trial judge committed plain error by failing to intervene sua sponte with a curative instruction or mistrial declaration.

RESEARCH NOTES:

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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272.4.15 Double Jeopardy: Mistrial Resulting From Prosecutorial Misconduct Intended To Thwart An Acquittal

See NCJIC 257.2.11 [Double Jeopardy: Death Penalty – Inapplicable To Life Sentence Imposed As A Matter Of Law After Hung Jury].

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272.4.16 Prosecution Misconduct: Misstatements Or Law Or Fact

PRACTICE NOTE: Prosecutors may not make material misstatements of law or fact. (See, e.g., Lesko v. Lehman, 925 F2d 1527, 1545-47 (3d Cir. 1991) [prosecutor's suggestion at death penalty phase that jury had duty to "even score" for 2 murders for which defendant would be separately sentenced was improper because of implication that jury had authority to impose death sentence for murder not before it]; Gall v. Parker, 231 F3d 265, 313 (6th Cir. 2000) [prosecutor acted improperly by erroneously telling jury that witness had told jury that defendant's "remission [] means [defendant] is legally feigning" insanity]; U.S. v. Staniforth, 971 F2d 1355, 1359 (7th Cir. 1992) [prosecutor's improper statement in closing argument that judge would instruct jury that defendant's failure to disclose liability to bank officer on application for loan renewal was material as matter of law was improper because prevented defendant from presenting theory of defense]; Driscoll v. Delo, 71 F3d 701, 711-12 (8th Cir. 1995) [prosecutor's statements minimizing jury's responsibility for imposing death penalty were improper because jury imposed death penalty without affording decision full consideration required]; Payton v. Woodford, 258 F3d 905, 915-16 (9th Cir. 2001) [prosecutor's mischaracterization of how jury should interpret instructions about extenuating circumstances during penalty phase was improper]; Mahorney v. Wallman, 917 F2d 469, 473-74 (10th Cir. 1990) [prosecutor's remarks that presumption of innocence no longer applied to defendant were improper because remarks undermined fundamental constitutional rights, defense counsel's objections were overruled, and evidence of defendant's guilt was not overwhelming]; U.S. v. Udechukwu, 11 F3d 1101, 1105-06 (1st Cir. 1993) [prosecutor's insinuation that defendant fabricated story about drug source was improper because prosecutor knew drug source existed]; U.S. v. Forlorma, 94 F3d 91, 96 (2d Cir. 1996) [prosecutor's repeated misstatements of fact reinforcing inference that defendant was aware of heroin concealed in bag were improper]; U.S. v. Wilson, 135 F3d 291, 297-99 (4th Cir. 1998) [prosecutor's closing argument that defendant had murdered someone in curbside drug deal was improper because remarks were unsupported by record, misled jury, and were prominent and well-developed]; U.S. v. Murrah, 888 F2d 24, 27-28 (5th Cir. 1989) [prosecutor's reference in opening and closing arguments to witness whose testimony would implicate defendant but who was never produced was improper because "inflammatory and misleading"]; U.S. v. Carter, 236 F3d 777, 784-85 (6th Cir. 2001) [prosecutor acted improperly by misrepresenting material evidence when erroneously stating that witness had never been told she had mistakenly identified defendant]; Howard v. Gramley, 225 F3d 784, 789 (7th Cir. 2000) [prosecutor's false statement that defendant had previously been charged with sexual abuse was improper]; U.S. v. Beckman, 222 F3d 512, 526-527 (8th Cir. 2000) [prosecutor's statement in closing argument that defendant charged with drug offenses lost job due to failed drug test was improper because evidence relating to issue was defendant's denial that he lost job due to such a test and such an assertion was to facts not in evidence]; U.S. v. Kojayan, 8 F3d 1315, 1320-22 (9th Cir. 1993) [prosecutor's untruthful statement that he had no plea bargain agreement with witness was improper despite being invited by defense]; Davis v. Zant, 36 F3d 1538, 1546-51 (11th Cir. 1994) [prosecutor's closing statement that defendant fabricated last minute defense that co-defendant committed murder was improper because prosecutor knew co-defendant confessed, so jury was deliberately misled]; U.S. v. Watson, 171 F3d 695, 698 (D.C. Cir. 1999) [prosecutor's misstatement of defense witness's testimony was improper because it amounted to statement of fact to jury not supported by record]; but see, e.g., Cone v. Bell, 243 F3d 961, 972-73 (6th Cir. 2001) [prosecutor's misstatement that defendant was drug dealer was not misconduct because statement was not material to issues in the case]; U.S. v. Carrillo, 16 F3d 1046, 1050-51 (9th Cir. 1994) [inadvertent mistake does not constitute improper misstatement of fact].)

The prosecutor should confine his or her opening statement to evidence that he or she intends to offer and believes will be admissible, and limit his or her closing argument to evidence on the record and permissible inferences therefrom. (See, e.g., U.S. v. Wilson, 135 F3d 291, 297-302 (4th Cir. 1998) [prosecutor's remarks during closing arguments in drug trafficking trial that defendant shot a man dead were impermissible because argument was not based on evidence in record or any reasonable inference therefrom]; Washington v. Hofbauer, 228 F3d 689, 697, 701 (6th Cir. 2000) [prosecutor acted improperly during closing by characterizing facts never introduced into evidence in order to enhance credibility of government witness]; U.S. v. White, 222 F3d 363, 370-71 (7th Cir. 2000) [prosecutor's statement in closing argument that defendant raped a 13-year-old girl and sent her to hospital was improper because there was no evidence in record that this occurred]; Copeland v. Washington, 232 F3d 969, 975 (8th Cir. 2000) [prosecutor's references during closing to statewide murders not in evidence were improper]; U.S. v. Peterson, 140 F3d 819, 823 (9th Cir. 1998) [prosecutor's reading from police report not admitted into evidence during closing argument was misconduct, although no prejudice to defendant was shown because parts read merely repeated substance of prior testimony and did not introduce new information]; U.S. v. Teffera, 985 F2d 1082, 1089 n.6 (D.C. Cir. 1993) [prosecutor's references in closing argument to alleged eye contact between co-defendants at time of arrest were improper because comment not supported by evidence]; but see, e.g., U.S. v. Salameh, 152 F3d 88, 134 (2d Cir. 1998) [prosecutor's argument during closing arguments that witness placed defendant at scene of bomb-making was not improper despite fact that witness failed to identify defendant, because argument was that jury should infer from totality of evidence that defendant was person seen by witness]; Downs v. Hoyt, 232 F3d 1031, 1038 (9th Cir. 2000) [prosecutor's mischaracterization of evidence during closing was not improper because it was an inadvertent mistake due to large amount of evidence, and was mentioned in passing during 8-hour closing]; Duvall v. Reynolds, 139 F3d 768, 795 (10th Cir. 1998) [prosecutor's comment during closing arguments that defendant "butchered" victim was not improper because it was reasonable inference from evidence of numerous stab wounds]; U.S. v. Chirinos, 112 F3d 1089, 1098 (11th Cir. 1997) [prosecutor's opening statement concerning past offenses of defendant was not improper because prosecutor had a reasonable belief that court would admit evidence]; U.S. v. Gartmon, 146 F3d 1015, 1025-27 (D.C. Cir. 1998) [prosecutor's description of car ride as "kidnapping," while literally incorrect given evidence on record, was in context clearly a figurative expression and therefore not misconduct].)