Prosecution Misconduct

1.    Prosecution Misconduct: Question Assuming As True A Fact Known To Be False

SAMPLE INSTRUCTION # 1:

AUTHORITIES:

    If the prosecutor propounded a question in a form which insinuated as a fact to the jury that which he knew was not true, this constitutes a misconduct on his part and is affirmative evidence of the weakness of his case.

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2.    Suggestive Questions As Prosecutorial Misconduct

    When a lawyer for one of the parties to a lawsuit asks a question which implies an answer, and the answer which is implied would be prejudicial to the other party, and then the Court rules that the question is improper, you may then consider the motivation of the party who asked the question. If you find that this motivation in asking the question was to intentionally place before the Court matters which he knew were improper, then such conduct is affirmative evidence of the weakness of his case. If, on the other hand, you find that he did not recognize the impropriety of his question and asked the question innocently, either because of lack of education or experience, you may draw no inference concerning either the implications of the question or the weakness of the questioner's case.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

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

SAMPLE INSTRUCTION:

SAMPLE INSTRUCTION # 1:

    Early in this trial the government represented that it had not previously seen certain documents that marked as exhibits. The government was in error. These documents had been in the possession of the government for many months.

SAMPLE INSTRUCTION # 2:

    During the questioning of concerning a report of to the , on behalf of objected on the grounds that the report was incomplete because it did not have attached to it all of the supporting documents which originally attached.

    In response to this objection, the government represented that these unattached documents would be offered through other witnesses. In discussion with the lawyers outside of the presence of the jury, I learned that the government's representation was not accurate and that the government did not intend to offer these other documents in evidence. The government explained that this earlier misrepresentation before the jury was the result of a misunderstanding of the objection. You may draw such inferences as you may feel to be appropriate from the misrepresentations made by the government.

SAMPLE INSTRUCTION # 3:

    At some point in these proceedings the prosecution asserted in the presence of the jury that _____________ was the attorney for . At the time I instructed you that such was not the case and that he neither appeared for , nor was (his/her) attorney. If you believe that the prosecution made this assertion in the presence of the jury knowing that it was false and for the purpose of misleading the jury as to a relationship between and , you may take this into consideration in weighing the government's evidence. If, on the other hand, you believe that this statement was made inadvertently, negligently, through ignorance or through simple error, then you should draw no inference from it whatsoever.

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SAMPLE INSTRUCTION # 1:

    Numerous orders were entered by this Court requiring the government to provide certain documents to defense counsel in time for them to be used in the cross-examination of witnesses and in the preparation of the defendants' case. In considering the evidence in this case you may take into consideration any evidence you have heard concerning the government's non-compliance with these discovery orders.

SAMPLE INSTRUCTION # 2:

    The defendants in this case asked the Court to require the government furnish them with certain documents so that they could prepare their defense to this charge.

    On _______, I ordered the government to give the defendants the documents they wanted. The government turned over certain documents, but failed to turn over documents which had been included in the order.

    I instruct you that while the government's failure to turn over these documents to the defendants in response to the order is not evidence of its bad faith, you may consider such failure in weighing the evidence which was adduced upon this trial.

SAMPLE INSTRUCTION # 3:

    You are instructed that the government has an obligation to make available to the defendant all prior statements made by government witnesses. It is proper cross-examination to ask questions designed to ascertain whether the government complied with this obligation.

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SAMPLE INSTRUCTION # 1:

    In weighing the proof which has been offered upon this trial, you may consider whether the state intentionally attempted either to mislead a witness or to mislead the jury by confusing terms and concepts. If the confusion arose from negligence, forgetfulness, inadvertence or simple lack of experience in asking questions, then no adverse inference against the state should be drawn. If on the other hand, the state intentionally asked questions of a witness which implied facts which it knew were false, then you may take this into consideration in weighing the strength of the state's case.

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SAMPLE INSTRUCTION # 1:

    You are instructed that even though the government calls a witness that witness is not the property of the government. If the government instructed the witness to avoid defense counsel, either explicitly or implicitly, such conduct was improper and may have been an attempt by the government to deprive the defense of an opportunity to discuss with the witness what his testimony would be. A similar inference may arise if you find that the government on its own initiative placed the witness in the company of a federal agent during the entire time that the witness was in the courthouse for the purpose of isolating the witness from conversations with defense counsel.

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SAMPLE INSTRUCTION:

    In considering whether the prosecutor by a representation in his opening statement was attempting to place before the jury a matter which would not be proven, you should consider whether such representation was made in good faith and whether it was prejudicial to the defendant.

    If you find that it was not made in good faith and was intended to prejudice the defendant, then this may be considered by you, if you wish, as evidence of the weakness of the government's case.

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SAMPLE INSTRUCTION:

    The District Attorney held a private interview with the witness during a recess in the cross-examination of the witness. Such a private interview is improper and you may consider the fact of this interview in weighing the testimony of ______________________.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

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SAMPLE INSTRUCTION:

    In determining whether the state fairly refreshed the recollection of its witnesses, you may consider whether, during the process of interviewing these witnesses prior to trial, state agents showed the witnesses all of the documents related to the transactions about which the witness would be questioned; or whether the state selected only those exhibits which supported its theory of the case.

    If the state showed only selected documents to its witnesses, and you find that it did so for the purpose of distorting their testimony by confining their recollections to matters probative of the state's theory, then you may consider this tactic in weighing the strength of the state's case.

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SAMPLE INSTRUCTION:

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