Prosecutor’s Remarks on Defendant’s Silence Requires Reversal

Although the prosecutor never remarked that a defendant’s silence implied anything during trial, any reference to a defendant’s silence is enough to require reversal

State v. A. M., 2016 BL 429804, Conn., No. SC 19497, 12/23/16.

The Connecticut Supreme Court held that any comments made by the state during a trial that reference a defendant’s silence during the trial proceedings is sufficient to trigger a reversal. During the closing argument, the prosecutor mentioned twice that the defendant had a constitutional right to remain silent, but that the jury could judge his credibility through statements made before the trial. The court reasoned that any comment on the defendant’s silence, even referencing the right to remain silent, can improperly draw the jury’s attention to the defendant’s decision to not take the stand. Moreover, there was a state statute that expressly prohibited prosecutors from commenting on a defendant’s refusal to testify at trial.

The state defended the error by arguing that it was harmless. The court rejected the argument because the case hinged on the defendant’s credibility, which was implicitly called into question by the reference to his silence at trial.

https://www.bloomberglaw.com/public/desktop/document/State_v_A_M_No_SC_19497_2016_BL_429804_Conn_Dec_23_2016_Court_Opi?1485364268

Hypothetically Summing Up Case Improper

The prosecution may not ask a hypothetical question to an expert that would ask them to assume a piece of disputed evidence as fact.

State v. Simms, 2016 BL 78140, N.J., No A-14, 3/15/16

     The New Jersey Supreme Court ruled that experts are forbidden to summarize disputed evidence or give opinions on ultimate issues that most jurors could resolve without any help. It also indicated that prosecutors may not use an expert's hypothetical as a proxy for closing argument.

     "A hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert's opinion on a defendant's guilt," the court ruled. In this case, the hypothetical question was improper because it called on the expert to assume facts that weren't established through testimony.

http://www.bloomberglaw.com/public/desktop/document/State_v_Simms_No_A14_September_Term_2014_2016_BL_78140_NJ_Mar_15_?1459440312