The Massachusetts Appeals Court recently ruled that it is reversible error and improper for a prosecutor to suggest the defendant had the opportunity to tailor his testimony and lie because he had heard the other witnesses during trial. This issue was addressed in Commonwealth v. Alphonse, and because the error was reversible, the defendant’s conviction was reversed.
The defendant was tried for the crime of assault & battery in the Brockton District Court. During closing arguments, the prosecutor argued:
“Who does have motivation to lie in this case? The defendant does…he’s the only person who has something to lose…he’s got every reason to lie to you. He’s got the opportunity to lie to you. Where was everyone else while testimony was going on? All the other witnesses were outside the courtroom. Where’s the defendant when all the other evidence, all the other witnesses were coming? Sitting right here. It’s the opportunity to tailor his version of events to what you already know.”
The defense lawyer objected at the prosecutor’s improper closing, and the judge also gave a ‘curative instruction’. The curative instruction given to the jury by the judge, however, did really address the prejudicial and improper remarks by the prosecutor. The instruction failed to advise the jury that the defendant had a constitutional right to be present at trial, to hear all the evidence against him, and that his presence could not be used against him.
On appeal, the Massachusetts Appeals Court explained that the defendant has both a federal and state constitutional right to hear the evidence against him. The prosecutor, in telling the jury that the defendant was present during all witness’ testimony and had the opportunity to tailor his own testimony infringed on that constitutional right.
Additionally, the Appeals Court explained that the error “went to the heart of the case” – the credibility of the witnesses who testified. It was up to the jury to credit one witness over another; and it was them to decide who to believe, and who not to believe.
In many cases where credibility is the central issue, it is extremely important for lawyers to be very attentive as to what the prosecutor argues in his closing. Very easily, these statements can be overlooked after a long trial and in the midst of a lengthy closing argument. However, when prosecutors improperly touch upon constitutional issues, and particularly where they get them wrong, the arguments are improper and objections should always be made.
It is of no consequence that this defendant was convicted. Not all trials are won. It is critical, however, that if the state secures a conviction against a person, that all the rules are followed and prosecutors obtain their convictions from the evidence, and not from improper and prejudicial arguments.
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