Thursday, January 24, 2013

Name Calling

A criminal defendant produced a handgun in court after the jury rerturned  a guilty verdict. He was subdued by the assistant attorney general and a sheriff. As a result, he was charged with attempted murder of the two public officials.

The North Dakota Supreme Court affirmed the conviction, concluding that the prosecutor's characterization of the defendant's story as a "lie" was improper but not unduly prejudicial:

Here, [defendant] Chacano's story was a candidate for fair and reasonable criticism, but prosecutors should not "inject their personal beliefs into closing argument." Clark, 2004 ND 85, ¶ 11, 678 N.W.2d 765. Though "[a] prosecutor's closing argument may properly draw reasonable conclusions . . . from the evidence," the danger is the prosecutor's improper argument "may induce the jury to trust the government's view rather than its own judgment . . . when deliberating." State v. Rivet, 2008 ND 145, ¶¶ 4-5, 752N.W.2d 611 (citation omitted).

In Schmidkunz, we noted our concern for inappropriate prosecutorial comments on evidence by noting, "when a prosecutor comments personally on evidence . . . he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness." 2006 ND 192, ¶ 10, 721 N.W.2d 387. Prosecutors can argue inferences and what the evidence shows, but opining "[t]he Defendant's testimony is a lie," is improper because it goes beyond an inference. As we have said before, we do not "countenance an attorney calling a witness a liar." State v. Flohr, 310 N.W.2d 735, 737 (N.D. 1981); see also Fox v. Bellon, 136 N.W.2d 134, 139-40 (N.D. 1965) (holding it was improper and misconduct for a plaintiff's attorney in a civil trial to call the defendant a "liar," "pathological liar," and a "crook" in rebuttal argument to jury).

Even though the prosecutor's comment was improper, Chacano must still show it affected his substantial rights. On this record, he cannot make that showing. This was a single, isolated statement in the context of a jury trial...

(Mike Frisch)

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