Identifying and Preventing Improper Prosecutorial Comment In Closing Argument

Authors

Robert W. Clifford

Abstract

In recent years, several decisions of the Maine Supreme Judicial Court sitting as the Law Court have addressed the comments of prosecutors in final argument before criminal juries. Three of those decisions in particular have caused concern among prosecutors and have stirred discussion in the Maine legal community. In vacating convictions in State v. Steen, State v. Casella, and State v. Tripp, the Law Court focused on the language used by the prosecutors during closing argument and concluded that those prosecutors impermissibly expressed personal opinion concerning the credibility of the defendants, or witnesses called by the defendants. This Article examines the decisional law of Maine in dealing with improper prosecutorial closing argument in the context of Steen, Casella, and Tripp. What the court has identified in those cases as prosecutorial misconduct in the closing argument is the expression of personal opinion by the prosecutor on the credibility of the defendant, or a witness for the defendant. The characterization of the closing argument as personal opinion is based on language used by prosecutors, frequently the use of pejorative language that the court found to be insufficiently connected to and justified by the evidence. A review of how the court has applied the law in this area reveals that, except in a few of its opinions, particularly Casella, and a 1983 case, State v. Smith, when emphasis was placed on the pejorative language used by the prosecutors without full consideration of the context in which the language was used, the court has correctly addressed the cases that have come before it.

First Page

241

Recommended Citation

Robert W. Clifford, Identifying and Preventing Improper Prosecutorial Comment In Closing Argument, 51 Me. L. Rev. 241 (1999).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol51/iss2/3