What should a prosecutor not say or do in closing argument?


In a jury trial, the prosecutor gets to explain how the defendant is guilty after all the evidence has been presented. This is called closing argument.  Prosecutors have bounds in which they have to stay.  According to the National Prosecution Standards published by the National District Attorney’s Association, a prosecutor should conduct his closing argument in such a way that it would be characterized as 1) FAIR, 2) ACCURATE, 3) RATIONAL, AND 4) BASED UPON EVIDENCE PRESENTED AT TRIAL.

Here in California, “[t]he role of a prosecutor is to see that those accused of a crime are afforded a fair trial and “‘… far transcends the objective of high scores of conviction… .'” (People v. Herring (1993) 20 Cal.App.4th 1066) It has been determined that it is prosecutorial misconduct if the prosecutor appeals to the 1) passion and prejudice of the jury. (People v. Simington (1993) Cal.App.4th 1374) In Simington, the prosecutor asked the jury to put themselves in the place of the assault victim.  So, the prosecutor cannot ask the jury to make their decision based upon the emotion a victim would be experiencing.  The jury must base their decision upon the evidence presented in the jury trial.

There are several other circumstances where prosecutorial misconduct can occur in closing argument:  2) Attacking integrity of defense counsel and/or defense witnesses, 3) Prosecutor’s personal belief in the facts or case, 4) Accusation of collusion by defense counsel in fabricating evidence, 5) Cannot comment on defendant’s indigent status (e.g. The taxpayers paying for the trial expenses of the prosecution and defense counsel and witnesses), 6) Cannot comment directly or indirectly upon the defendant’s failure testify, 7) Cannot ask the jurors to make a moral judgment, and 8 ) The prosecutor cannot dilute or disparage the burden of proving his case beyond a reasonable doubt or minimize the presumption of innocence.

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