EvidenceProf Blog

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

Monday, May 2, 2016

Colorado Court Finds Prosecutor Erred By Speaking to Jury in 1st Person As If He Were Victim During Opening

For a substantial part of his opening statement, the prosecutor assumed the identity of the victim. He began by saying, “My name is [the victim]. I was 55 years old when I was ambushed, murdered and set up by Traci Adams and Mark Manyik, the Defendant.”

The prosecutor then described the victim's relationship with Adams, the end of the relationship, and the events leading up to the shooting, all in the voice of the victim. Regarding the shooting, he said, “I see Mark raise a shotgun, this 12–gauge shotgun. I look at Mark. I'm scared. I say to him, ‘Mark, please don't shoot.’ I didn't stop him. He fired one single 12–gauge round directly into my belly. I fall backwards....”

The prosecutor went on to narrate, as the victim, Manyik's and Adams' actions after the shooting, including speaking with the 911 operator and taking the victim's cell phone. In the same way, the prosecutor described the police arriving and the victim's death:

I can hear sirens arriving.... I'm still barely alive, but not really conscious.... [The] [d]eputy eventually comes up to my near lifeless body.... He calls Flight for Life.... A few minutes later the helicopter lands and the medical staff and the police get me into the helicopter, take me to the hospital. Somewhere between that flight from the Manyik residence to the hospital I die.

The prosecutor then switched to his own voice and point of view, which he used for the remainder of his opening. At no point did Manyik object to the opening statement.

This language comes from the recent opinion of the Colorado Court of Appeals in People v. Manyik, 2016 WL 1165332 (Colo.App. 2016). So, were the prosecutor's actions objectionable? And should the defendant have been given a new trial even in the absence of an objection?  

The technique used by the prosecutor is known as "channeling." According to the court, "'[c]hanneling the victim' is a technique by which a lawyer speaks to the jury in the first person as though [he] is the injured or deceased person." No Colorado court had previously addressed "channeling," but other courts  had reversed convictions based upon "golden rule" arguments, in which prosecutors "ask[ed] jurors to imagine themselves in the place of the victim." Such arguments "are improper because they constitute 'impermissible digressions from the evidence' and have 'the potential to incite jurors to reach a verdict on the basis of bias or prejudice.'"

The Colorado Court of Appeals found that similar reasoning applied in Manyik:, According to the court, the prosecutor's

statements were not mere references to the evidence that would be introduced at trial. Rather, "by creating a fictitious character based on the dead victim and by ‘testifying’ in the voice of the character as if he had been a percipient witness," the prosecutor manipulated and misstated the evidence.

The character the prosecutor created based on the victim was presented as an eyewitness to the murder; the prosecutor essentially purported to give actual testimony on behalf of the victim....Because the statements during opening reflected the prosecutor's personal opinions about what the victim might have said had he been able to appear as a witness, the technique also ran afoul of the longstanding prohibition against a prosecutor expressing his belief in the guilt of a defendant....Moreover, as Manyik had no way to cross-examine the fictitious witness created by the prosecutor, the prosecutor's opening statement risked infringing Manyik's constitutional right of confrontation.

That said, because Manyik didn't object to the prosecutor's "channeling," the appellate court could only reverse for "plain error," which the court found did not exist due to overwhelming evidence of Mayik's guilt.



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Man the more criminal case law I learn about from across the country, the more reinforced the stereotype I am getting of prosecutors as being ambulance chasing late night infomercial attorney-level sleezy.

I suppose this isn't entirely fair though, as there's a strong selection bias. The cases where convictions are achieved by prosecutors behaving ethically and maintaining honesty, don't get reported on because they are by definition, not newsworthy.

Posted by: Paul | May 2, 2016 6:35:14 PM

Would the argument have been improper if it was given as a closing instead of an opening?

Posted by: Frank | May 3, 2016 8:18:00 AM

Frank--I believe so, because the defendants right to confront and cross examine witnesses against them is still being violated.

Well, that, and the purported witness(the victim)'s testimony is being fabricated to begin with.

There may also be a hint of the prosecutor personally vouching for the credibility of a witnesses testimony... A witnesses fake testimony,,,, a fake witnesses fake testimony, yikes...

Posted by: Paul | May 3, 2016 7:13:22 PM

I think that tactic would always be considered an error because the prosecutor is appealing to the jury's emotions, and blatantly trying to distract them from considering the evidence (or more likely, lack of evidence).

Posted by: Eric Wolff | May 4, 2016 3:30:55 AM

What if the defense attorney made a closing argument which channeled the victim's perspective to further the defense's theory of the case? Would such as argument from the defense counsel be also objectionable? Argument is not evidence.

Posted by: Frank | May 4, 2016 6:35:12 AM

Would this same rule apply if they were talking in the point of view of a witness or a victim whom was not murdered? Using their testimony and asking the jury to imagine themselves in the situation so they can more clearly understand the testimony?

Posted by: Robert Kirkpatrick | May 4, 2016 9:47:12 AM

What's the rule on terrible no good really bad writing? /snark

Open letter to all lawyers: Even if you are on TV, you are not Shonda Rhimes!

Posted by: boo | May 5, 2016 10:40:36 AM

Yes, there are no double standards here. Defense attorneys engaging in misconduct earn just as much ire as prosecutors doing so.

The one difference however that would make a defense attorney less culpable breaking the rules this way, is that the element of a defendant not being able to cross examine witnesses against them isn't present. The prosecution DOES also get to cross examine witnesses, and gimmicks preventing them from doing so is also against the rules. It isn't, however, a violation of anyone's constitutional rights.

So while a defense attorney doing so would be a less egregious transgression, it's still a transgression and wouldn't be allowed.

Posted by: Paul | May 11, 2016 2:29:24 PM

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