Prosecutorial Misconduct

Prosecutorial Misconduct in a Criminal Trial 

Criminal Defense Attorneys are subject to the Rules of Professional Conduct, which govern the legal profession. Generally, criminal lawyers are prohibited from referring to inadmissible evidence, asserting personal knowledge of contested facts, and asserting personal opinions about the justness of a cause, the credibility of a witness, or about the guilt or innocence of a criminal defendant. Notwithstanding the Rules of Professional Conduct, criminal prosecutors generally may exercise wide latitude in addressing the jury and in presenting closing arguments.

In order for a criminal prosecutor’s comments to be found improper, the defendant must prove, by and through his criminal defense attorney, that the prosecutorial misconduct rose to the level of fundamental error. Fundamental error, as defined by case law, is an error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. The Florida Supreme Court has ruled that it is improper for a criminal prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness.

In Montanye v. State of Florida, the Defendant was charged with felony battery. A physical altercation broke out between at a social gathering between the Defendant and the victim, an off-duty policeman, and the victim was severely injured as a result. During the trial, several eyewitnesses testified that criminal Defendant had committed the battery. Conversely, Defendant’s brother took the stand and testified that he, not the Defendant, had in-fact committed the battery. The Defendant was convicted by a jury. Defendant appealed alleging prosecutorial misconduct due to comments made during the prosecution’s case-in-chief and also during closing statements.

During trial, the criminal prosecutor repeatedly stated that Defendant’s brother was lying. This comment improperly expressed the prosecutor’s personal opinion about the credibility of the witness and also attempted to shift the burden of proof to the defense. The brother’s wife was present during the altercation and not called to testify and in response the prosecutor then stated that the rationale was that “maybe one perjurer in the family was enough.” The prosecutor also demeaned the defense’s case-in-chief by stating: “I was expecting them to say that the sun was in their eyes and the dog ate their homework.” The Appellate Court ruled that the improper statements did not rise to the level of fundamental error but in the opinion did admonish the prosecutorial misconduct.

Should you have further questions regarding the possible prosecutorial misconduct in Fort Lauderdale criminal cases that may have impacted your right to a fair trial, please contact William Ryan Moore, Criminal Defense Attorney Broward County.