Catalyzing More Adequate Federal Habeas Review of Summation Misconduct: Persuasion Theory and the Sixth Amendment Right to an Unbiased Jury

Abstract:     
This article argues that higher scrutiny of claims of argumentative misconduct in prosecutors' closing arguments is warranted in the context of federal habeas review of state criminal trials. The current standard against which these claims are reviewed is unduly convoluted and subjective. Furthermore, habeas review is essential where state courts lack institutional competence to address the misconduct at issue, as the article demonstrates. The proposal is to realign the test for unduly inflammatory summations with the test applied to prejudicial pretrial publicity, as persuasion theory demonstrates that these phenomena have similar effects.

Number of Pages in PDF File: 48

Keywords: forensic misconduct, inflammatory summations, closing arguments, sixth amendment, jury trial, persuasion theory, criminal procedure, habeas corpus

JEL Classification: K14, K40, K41

Accepted Paper Series