Inappropriate comments by a prosecutor in his opening and closing statements leads to overturning murder convictions. What did the prosecutor say that was wrong?

State of New Jersey v Greene & Lewis New Jersey Appellate Division decision decide to January 28, 2019.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Simply put, in this case the prosecutor made reference to possible testimony from a witness who heard a confession by one of the defendants that he committed the shooting that led to the death of another. On appeal the defendant argued that the prosecutor’s statement in his opening to the jury that they would hear from a witness to one if the defendant’s  confession, when the prosecutor knew the witness might not test to testify, was so prejudicial as to taint the entire jury trial.

The specific piece of evidence the state made reference to in its opening was from the grandmother of one of the defendant. The defendant ran from the scene and went to his grandmothers house and allegedly admitted that he was involved in the shooting. There was a substantial question of whether the grandmother was going to cooperate and testify and come to court. After several motions addressing that issue, and specifically the introduction of and out of court statement made against the interest of one of the defendants, which is a hearsay issue pursuant to New Jersey Rule of Evidence 804B9, the prosecutor possessed strong indications prior to his opening that this witness would not be coming to court to testify or cooperating with the state. Regardless, the prosecutor still made the prejudicial comment in his opening that the jury would hear grandma testify that the confession was made. In State v. Land, 435 N.J. Super 249 (App. Div. 2014), The New Jersey Supreme Court ruled that a prosecutor’s comments in an opening that a witness would come to testify whom the prosecutor knew may not testify and could refuse to testify, regardless of being made in good faith or not, was prejudicial error requiring a reversal. To tell a juror that there is a confession in the case and they are going to hear it, is improper conduct that tainted the entire trial process and the defendant entitlement to a fair and impartial hearing.

This appellate panel, relying on the Land case arrived at the same conclusion. The court recognized in this case, just as in Land, that the Prosecutor did have considerable doubt as to whether the witness would testify. Regardless of whether the prosecutor was acting in good faith, such prejudicial comments are entirely inappropriate fore which no curative instruction on behalf of the judge could address.

The court did not review the balance of the appellate issues because it found that the prosecutors opening damaged the entire balance of the testimony in the case and “Raised a reasonable doubt as to whether or not the jury could reach a result in light of the comments made.”  The court was very concerned regarding the defendants entitlement to a fair and impartial hearing even though there was strong evidence of Greene and Lewis’ guilt in this case.

Jeffrey S. Hark, Esq.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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