42 Pages Posted: 23 Aug 2017
Prosecutor misconduct in closing argument is rampant. Prosecutors make improper arguments because it is a highly effective, yet virtually risk-free, strategy. That is, even if the defense lawyer quickly identifies and objects to the misconduct, the jury still hears the improper argument, the available remedies are toothless, and the offending prosecutor rarely suffers any consequences. This Article proposes an alternative approach for combating this problem. Instead of waiting to object until after the prosecutor makes the improper argument, defense counsel should consider a more aggressive strategy: the pretrial motion in limine. This motion seeks a pretrial order to prevent the misconduct before it occurs, and, in cases where the prosecutor violates the order, it establishes a framework for addressing the misconduct in a meaningful way.
This preemptive strategy has several advantages over the conventional, reactionary approach. First, even if the motion in limine fails to deter the misconduct, it alerts the trial judge to the improper arguments before the prosecutor makes them. Second, and most importantly, it preserves the issue for meaningful trial-court review, outside of the jury’s presence, without defense counsel having to raise difficult and risky objections in the middle of closing arguments. Third, the motion-in-limine approach also provides a framework for developing meaningful remedies for the misconduct. This includes providing the opportunity to draft thoughtful and effective curative instructions, and affording time for client consultation before requesting the more serious remedy of a mistrial. And fourth, in the event a mistrial is declared, the motion-in-limine approach may even protect the defendant from re-prosecution.
Keywords: Prosecutor Misconduct, Closing Arguments, Criminal Law, Criminal Procedure, Due Process
Suggested Citation: Suggested Citation
Cicchini, Michael D., Combating Prosecutor Misconduct in Closing Arguments. Oklahoma Law Review, Vol. 70, No. 3, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3022543