EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, April 17, 2009

Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutoruial Comment During Closing

It is well established that a prosecutor may not belittle or disparage the defendant('s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless." The question that the Court of Appeals of Minnesota had to address in State v. Peterson, 2009 WL 982081 (Minn.App. 2009), was whether the prosecutor in the appeal before it crossed this line.

In Peterson, Mark Peterson appealed from his conviction on one count of first-degree criminal damage to property. At Peterson's trial, the prosecution impeached Peterson and several of his defense witnesses through their prior criminal convictions pursuant to Minnesota Rule of Evidence 609. For instance, the prosecution impeached Peterson though his "two convictions for providing false information to police, three convictions for fifth-degree controlled-substance crimes, and one conviction for felony violation of an order for protection."   

Subsequently, during closing argument, the prosecutor stated:

Now the defendant, of course, has twice before been convicted for lying to law enforcement in 2004. Once in Beltrami County, once in Cass County. He's also got two convictions for controlled substance crime in the fifth degree for selling marijuana, one conviction in 2007 for possession of methamphetamine, and a felony conviction for violation of an Order for Protection. Were talking witnesses here who have lengthy criminal histories.

* * *

Now what do you have from the defendants testimony? Well, you have the defendant telling you that he didnt flush those sheets down the toilet. You have to make a judgment call as to whether or not you believe his testimony. Well, as Ive indicated before, hes previously been convicted twice for lying. That clearly is a factor that you may consider in determining whether or not hes telling the truth now. Clearly, that crime, providing false information to law enforcement, to a peace officer, falls within the type of crime that would indicate a likelihood the witness is telling or not telling the truth now.

Peterson subsequently appealed, claiming that the prosecutor's comments crossed the line mentioned above. The Court of Appeals disagreed, finding "that the prosecutor did not characterize appellants defense as ridiculous or otherwise." It distinguished the case before it from cases where prosecutors referred to the defense as "soddy" or "ridiculous" or suggested that the jurors would be “suckers” or "snowed" if they believed the defense. Rather, the court found that the prosecutor's comments had a clear basis in the record based upon the admission of the aforementioned impeachment evidence.

More troubling, however, was the fact that the prosecutor referred to referred to "the defense witnesses as a dealer, a burglar, and a thief." The Court of Appeals found that this was improper, relying upon the Supreme Court of Minnesota's opinion in State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990), which had found that "that a prosecutor exceeds permissible bounds when using a defendants prior convictions to personify him as a burglar or thief as opposed to noting the defendant had been convicted of burglary or theft."   

Nonetheless, the Court of Appeals found that Peterson did not suffer unfair prejudice as a result of the prosecutor's remarks for three reasons:

First, appellants trial counsel mitigated the impact of the prosecutors characterization of the defense witnesses by pointing out that it is not surprising that witnesses to an incident that occurred in a correctional center would have a criminal record. Second, the district court cautioned the jury that evidence that a witness has been convicted of a crime may be considered only for whether the kind of crime committed indicates the likelihood the witness is telling or not telling the truth. Third, the jurys conduct, including the submission of questions to the court and deliberating for several hours over two days, indicates the jurors were not unduly inflamed by the prosecutors comments.  

I'm not sure that I buy the Court of Appeals' conclusion that the prosecutor's latter remark was not unfairly prejudicial, but I do by the general distinction drawn by the court: Prosecutors may remind the jurors at the end of trial of the properly admitted convictions of the defendant and/or his witnesses, but he can not refer to either as a dealr, burglar, thief, murderer, rapist, etc.



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