Prosecutorial Misconduct Can Be a Ground for Reversal

Prosecutorial misconduct can be a ground for reversal where the prosecutor’s misconduct was so egregious that it deprived the defendant of a fair trial.

State vs. Regan   Appellate Division February 9, 2016

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

This case was won and or lost by the prosecutor based on several witness’ testimony and the credibility of the defendant when he testified at trial.  The key issue for this blog is the Appellate Court’s reversal of the conviction because of prosecutorial misconduct.  When the prosecutor asked the defendant on cross examination if he was tailoring his testimony based on what he heard while he was present when other witnesses testified violated a 2004 NJ Supreme Court Opinion and bright line rule.  In the 2004 case our NJ Supreme Court ruled in State v. Daniels, 182 N.J. 90 (2004), the state can not attack a defendant’s credibility based on him being present when other witnesses testify.  In other words, when a defendant is exercising his fundamental trial rights a) to be present and hear a witness testify, b) participate in his own case c) exercise his other constitutional rights, the state can not attack his credibility by inferring the defendant’s testimony has been tailored based on what he heard!

The Appellate court opined:

We begin with an analysis of the prosecutor’s accusation of tailoring because we determine that conduct in prosecutorial misconduct. In State v. Daniels, our Supreme prosecutors from “drawing the jury’s defendant’s presence during trial and his concomitant opportunity to tailor his testimony.” Daniels, supra, 182 N.J. at 98. The Court held that prosecutorial comments suggesting that a defendant tailored his or her testimony undermines his exercise of fundamental rights. Ibid. Among those rights are his “right to be present at trial, to be confronted with the witnesses against him and to hear the State’s evidence, to present witnesses and evidence in his defense, and to testify on his own behalf.” Id. at 97-98 (citations omitted).

The Court also identified two categories of tailoring accusations: generic and specific. Id. at 98. Generic accusations are those with “no specific evidentiary basis,” and are completely prohibited. Ibid. Prosecutors are permitted, however, in a limited fashion to make specific accusations “[i]f there is evidence of tailoring” in the record. Id. at 98-99. Nevertheless, “at no time” can the prosecutor comment on “the defendant’s attendance at trial or his [or her] ability to hear the testimony of preceding witnesses.” Id. at 99.

The same prohibition applies to a prosecutor’s cross- examination. Ibid. A “prosecutor must have ‘reasonable grounds’ for posing questions during cross-examination that impugn a witness’s credibility,” and “if there is evidence in the record that a defendant tailored his [or her] testimony, the prosecutor may cross-examine [him or her] based on that evidence.” Ibid. (quoting State v. Rose, 112 N.J. 454, 504 (1988)). The prosecutor is prohibited, however, from “referenc[ing] the defendant’s attendance at trial or his [or her] ability to hear the testimony of preceding witnesses.” Ibid.

The Supreme Court has since described its Daniels mandates as “a blanket prohibition” and a “bright-line rule” arising from its “supervisory role over the administration of criminal justice.” State v. Feal, 194 N.J. 293, 298 (2008).

The Court in Feal and Daniels also noted, however, that not every improper comment or question by a prosecutor will warrant reversal and a new trial. Id. at 312; Daniels, supra, 182 N.J. at 96. A “court may reverse only if the prosecutor’s comments were ‘so egregious that [the comment] deprived the defendant of a fair trial.’” Daniels, supra, 182 N.J. at 96 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). Thus, “prosecutorial misconduct can be a ground for reversal where the prosecutor’s misconduct was so egregious that it deprived the defendant of a fair trial.” Frost, supra, 158 N.J. at 83. Moreover, where a defendant fails to object to the challenged comment or question, the defendant must establish plain error. See R. 2:10-2; Feal, supra, 194 N.J. at 312. The plain error must be “sufficient [to raise] a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached.” Feal, supra, 194 N.J. at 312 (alteration in original) (quoting Daniels, supra, 182 N.J. at 102).

Here, during cross-examination of defendant, the prosecutor made an explicit comment that defendant had been present at trial “watching the testimony in this case.” The prosecutor then twice accused defendant of “tailor[ing]” his testimony based on what he knew the other witnesses had testified. While the State contends that such repeated questions were “nothing more than a fleeting mistake,” we conclude that the comments and questions constitute misconduct as prohibited by the Supreme Court in Daniels.

At trial, defendant made no objection to the comments or questions during cross-examination. Accordingly, the question turns to whether the misconduct constitutes plain error. See R. 2:10-2. Defendant’s defense was built on his testimony. He apparently hoped to convince the jury that he hit Holmes only once in the mouth and caused Holmes no significant bodily injury.

Because other witnesses testified differently, defendant’s credibility was questionable, but remained a central issue at trial. As a consequence, the prosecutor’s comments and questions cannot be characterized as “fleeting references.” See Feal, supra, 194 N.J. at 313 (holding that defendant did not establish plain error where the prosecutor made only “fleeting references” to defendant’s presence in the courtroom). Here, the attack on defendant’s credibility was central to the prosecution’s case. If the jury believed defendant, the jury might not have convicted him of aggravated assault. Critically, the prosecutor’s comments and questions were sufficient to raise a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached. We emphasize that we are not suggesting that prosecutors cannot attack defendant’s credibility if a defendant chooses to testify at trial. Instead, we are enforcing a clear rule laid down in Daniels: prosecutors may cross defendants on evidence in the record, but “at no time during cross-examination may the prosecutor reference the defendant’s attendance at trial or his [or her] ability to hear the testimony of preceding witnesses.” Daniels, supra, 182 N.J. at 99.

Accordingly, the prosecutor’s improper challenge to defendant’s credibility in violation of defendant’s exercise of his constitutional right to be present at trial, warrants reversal of the conviction and a new trial.

For additional information, read here:

Definition of “Significant” Injury in an Assault Case

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