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Michael HoenigMichael Hoenig ()

On Dec. 28, 2016, the New York Appellate Division, Second Department, issued its pithy, pungent decision in People v. Brisco,1 reversing a criminal conviction for improprieties during the prosecutor’s summation. The opinion bristles against the cumulative effect of inflammatory comments such as: directly attacking defense counsel’s role and his integrity; raising a hypothetical that bore no relation to the evidence in the case and then suggesting what defense counsel would have argued with respect to that irrelevant hypothetical; improperly referencing facts not in evidence in order to call for speculation by the jury; misstating critical testimony by a defense witness, alleging that certain facts were “undisputed” when in fact they were disputed; improperly appealing to the jury’s sympathy and generalized fear of crime by asserting defendant possessed a loaded gun and, because police officers in the area “did their jobs,” fortunately, nothing happened; and advising the jury, “now it’s your turn to uphold your oaths as jurors and do your jobs” by finding the defendant guilty (a so-called “safe streets” argument considered inflammatory and disapproved by the courts); plus other remarks.

That courts exercise heightened vigilance in criminal cases when prosecutorial arguments cross the lines of prejudice should not be surprising. In criminal cases the stakes are incarceration and a hounding stigma beyond the jail term. Prosecutors are held to a high standard, for the jury may give special weight to their arguments. Also, as the U.S. Supreme Court said in Berger v. United States,2 the U.S. attorney is “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Thus, “while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones.”3

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