Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to the jury that the prosecutor believed that the witnesses were lying. In State v. Casella, the prosecutor's case was largely based on the premise that the defendant had duped his victims. The Law Court vacated the multiple count theft conviction because the prosecutor “not less than forty-one times, asserted his opinion that Casella had lied.” In State v. Tripp , the prosecutor stated in closing argument that the victim had told the truth because he had recounted his sexual abuse in detail that would be foreign to a nine year old. The Law Court vacated the conviction, finding that the prosecutor's statement was a “personal opinion” concerning the credibility of a witness. Whether the Law Court is just “playing semantics” or attempting to “reel in” runaway prosecutors, the court's willingness to scrutinize prosecutorial statements and find impropriety could have a profound effect on prosecutorial summation in Maine. The Law Court's eagerness to label prosecutorial inferences as improper “personal opinion,” its apparent hostility to prosecutorial use of the term “lie” in any of its grammatical forms, and the summary fashion in which the court has discussed these issues has left many Maine district attorneys scratching their heads. The opinions fail to establish a perceptible line dividing proper argument based on the lawyer's analysis of the reasonable inferences permissibly drawn from the evidence and improper summation based on personal beliefs. Despite pronouncements that the issue on appeal in all three cases was the fairness of the trial, the court emphasized the prosecutor's conduct, not the effect of that conduct on the jury's deliberations. This focus suggests that the court's interest is in issuing direct warnings to the prosecutor. Disappointed that prosecutors have repeatedly ignored its previous warnings, the Law Court, in venting its frustration, misapplied and misconstrued the personal opinion limitation and redefined standards of review in order to sanction prosecutors for their continued indiscretions. The court's eagerness to censure prosecutors threatens to restrict closing argument and undermine public confidence in the criminal justice system by creating the perception that convicted criminals are escaping incarceration because of technicalities. This Comment will examine these recent decisions.
James W. Gunson,
Prosecutorial Summation: Where is the Line Between "Personal Opinion" and Proper Argument?,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol46/iss2/5