§1:71 Memorandum in Support of Defendant’s Motion in Limine to Preclude
Prosecutorial Misconduct
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION IN LIMINE
TO PRECLUDE PROSECUTORIAL MISCONDUCT
Counsel by this motion seeks to preclude the prosecution from engaging in
conduct that many practitioners and courts heretofore have allowed due to
ignorance of the illegal nature of such conduct. Post comment curative
instructions DO NOT adequately ensure a fair trial and so pre-comment rulings
are necessary. Thus, the defendant requests the Court to preclude the prosecution
from any of the following:
1. Any statement, remark, or insinuation that is intended to discredit defense
counsel in front of the jury. State v. Lundbom, 96 Or. App. 458, 773 P.2d 11
(1989) (referring to defense counsel as "pimp" and "hired gun"); Carter v. State,
356 So. 2d 67 (Fla. App. 1978) (prosecutor referred to defense counsel as a
"mouthpiece"); Commonwealth v. Long, 392 A.2d 810, 813 (Pa. Super. Ct. 1978)
(prosecutor referred to defense counsel as a "not guilty machine");
Commonwealth v. Sargent, 385 A.2d 484 (Pa. Super. Ct. 1978) (reference to fact
that defendant had a "paid attorney" hired to "acquit"); People v. Weller, 258
NE2d 806, 810 (Ill App Ct 1970) (stating that defense counsel "could … qualify
as an SS Trooper").
2. Any statement that exalts the role of the prosecutor over that of the defender,
e.g., “I represent the people of the State of _______” etc. Dykes v. State, 325
S.W.2d 135 (Tex Crim App 1959) (Prosecutor stated defense counsel is a
mouthpiece for rapists and murderers, whereas counsel for the state is a public
servant paid to represent the people of the community).
3. Any expression of the personal opinion of the prosecutor that the defendant is
guilty, or that any particular witness is credible or not credible. State v. Gairson,
5 Or. App. 464, 469, 484 P.2d 854 (1971).
4. Reference to facts outside the record including comment or argument regarding
matters pertaining to the societal risks posed by drunk drivers and other such
irrelevant prattle. See State v. Leon, 1997 WL 598387 (Ariz. Sept. 30, 1997); and,
any argument suggesting that the jury must protect society from drunk drivers
with its guilty verdict. State v. Hoppe, 2002 WL 418379; State v. Duncan, 608
N.W.2d 551 (Minn. App. 2000).
5. Any statement implying that there are other facts available to the prosecution
that are not brought into court. Leon, supra.
6. Any suggestion that the defendant has committed crimes other than those
alleged in the information or indictment. Leon, supra, State v. Blodgett, 50 Or.
329, 343, 92 P. 820 (1907); State v. Jones, 279 Or. 55, 62, 566 P.2d 867 (1977)
(rape prosecution; evidence adduced by prosecutor that witness said defendant
had "done it" so many times before that he was going to the penitentiary).
7. Reference to matters going to prosecutorial discretion. State v. Miller, 1 Ore.
App. 460, 465, 460 P.2d 874 (1970) ("The state is here. The State believes there
is evidence ...").
8. Reference to jurors or "fellow citizens" being, or having been, victims of crime.
State v. Bolt, 108 Or. App. 746, 750, 817 P2d 1322 (1991).
9. Commenting on matters not in evidence. Leon, supra.
10. Incorrect interpretations of the law including, but not limited to, the
suggestion or inference that drinking alcohol is a prima facie element of any
crime presently charged. State v. Molatore, 3 Ore. App. 424, 428, 474 P.2d 7
(1970) (suggesting that defendant knew that jeopardy would bar prosecution on a
related charge when, in fact, it would not).
11. Eliciting testimony that in the witness's opinion the testimony of another
witness is either true or false. State v. Reimer, 246 Ariz. Adv. Rep 53 (App. July
7, 1997); State v. Isom, 306 Ore. 587, 591-92, 761 P.2d 524 (1988) (On crossexamination, prosecutor suggested that contradictory witness was either mistaken
or lying).
12. Suggesting that the defendant's exercise of the right to counsel implies that the
defendant is guilty. Hunter v. State, 573 A.2d 85 (Md. App. 1990).
13. Any statement, comment, remark or insinuation whereby the government
lawyer vouches for the credibility or integrity of state's witnesses. State v. Leon,
supra; United States v. DiLoretto, 888 F.2d 996 (3d Cir. 1989) (prosecutorial
vouching for credibility of witness is reversible error per se when based on facts
outside the record); United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974)
(prosecutorial expression of view of the righteousness of his cause).
14. Reference to the defendant's off-the-witness-stand behavior. United States v.
Pearson, 746 F.2d 787 (11th Cir. 1984) (prosecutor improperly commented upon
co-defendant Petracelli's nervous habit of jiggling his leg as bespeaking guilty
fear); United States v. Wright, 489 F.2d 1181 (D.C. Cir. 1973) (prosecutorial
comment on defendant's off-the-witness-stand actions required reversal).
15. Any statement, comment or insinuation by the prosecutor characterizing the
defendant's out of court statements as "lies" since that constitutes a comment on
the defendant's demeanor and character when he has not testified or otherwise put
character into issue. Hughes v. State, 437 A.2d 559 (Del. 1981).
16. Any statement or insinuation by the prosecutor that a person is not arrested
unless he is guilty. Hughes v. State, 437 A.2d 559 (Del. 1981).
17. Any statements, remarks or insinuations that are in opprobrious language,
invective, or from the making of any statement or inflections that have no place in
argument, but are only calculated to cause prejudice. Walker v. Penner, 190 Ore.
542, 553, 227 P.2d 316 (1951).
18. Any statement that is calculated solely to evoke an emotional response from
the jury. Walker v. Penner, 190 Ore. 542, 553, 227 P.2d 316 (1951).
19. Any statement, comment, insinuation or remark, be it emphatic or
personalized, vouching for the integrity of the police. United States v. Ludwig, 10
F. 3d 1523, 1526–1527 (CA10. 1993); see State v. Leon, 508 F.2d 140, 143 (10th
Cir. 1974); see also United States v. Garza, 608 F.2d 659 (5th Cir. 1979);
Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967).
20. Any statement, remark, comment or insinuation that the jury should "send a
message" to the community that the defendant's alleged behavior will not be
tolerated. United States v. Sullivan, 937 F.2d 1146 (6th Cir. 1991).
21. Any statement, remark, or insinuation regarding the defendant's failure to
testify, or intention to not testify. State v. Halford, 101 Ore. App. 660, 792 P2d
467 (1990) (prosecutor reminded jurors that defender said in opening statement
that the defendant would testify; defendant did not testify; conviction reversed
and remanded for determination as to whether retrial barred by jeopardy); State v.
Wederski, 230 Ore. 57, 60, 368 P.2d 393 (1962) (such comments had a
"presumably harmful effect").
22. Any statement, remark or insinuation that improperly places the burden of
proof on the defendant. State v. Walton, 311 Ore. 223, 809 P.2d 81 (1991).
23. Any statement, remark, or insinuation regarding the defendant's contact of an
attorney as evidence of a guilty mind. Hubter v. State, 573 A.2d 85 (Md. App.
1990).
24. Any statement, comment or insinuation that the defense attorney established a
perjured defense. State v. Pirouzkar, 98 Ore. App. 741, 745, 780 P.2d 802
(1990).
25. Any statement, comment, or insinuation that the defense counsel made
frivolous objections or tried to pull the wool over the jury's eyes or that the entire
strategy of defense counsel was to keep as much evidence from the jury as
possible. Anderson v. State, 525 S.W.2d 20 (Tex. Crim. App. 1975).
26. Any statement of fact within the prosecutor's own knowledge without first
being sworn and taking the witness stand. Tinker v. State, 93 S.W.2d 441 (Tex.
Crim. App. 1936); Hemmerline v. State, 314 S.W.2d 833 (Tex. Crim. App. 1958).
27. That the defendant has committed or may have committed some prior act of
misconduct that is not in evidence. Lookabaugh v. State, 352 S.W.2d 279 (Tex.
Crim. App 1961).
28. Suggestion that the defendant should be compared to an animal, coward,
beast, sadist, maniac, or any other generic term designed to subject the defendant
to personal abuse or to convey to the jury that he is in some manner "less than
human." Richardson v. State, 257 S.W.2d 308 (Tex. Crim. App. 1953); 217
S.W.2d 1041 (Tex. Crim. App. 1949); Marx v. State, 150 S.W.2d 1041 (Tex.
Crim. App. 1941).
29. Suggesting that defense counsel should be subject to criticism for making
objections to the evidence. Garza v. State, 160 S.W. 2d 926 (Tex. Crim. App.
1942).
30. Raising the issue of the cost of crime generally and/or driving while
intoxicated specifically. Bridewell v. State, 114 S.W.2d 259 (Tex. Crim. App.
1938) ("Our crime bill is mounting every year. It is costing you 15 billion dollars
- every man - and woman is paying $120.00 per year crime toll. Crime is on the
increase.")
31. Any statement that the police would not "put their jobs on the line" by
testifying untruthfully. Clark v. State, 632 So. 2d 88 (Fla. Dist. Ct. App. 4 1995).
32. Any assertion or suggestion of fact that there is any relationship between a
subject’s performance on so-called standardized field sobriety tests and that
subject’s ability to safely drive a motor vehicle. State v. Meador, 674 So. 2d 826,
21 Fla. L. Weekly D1152 (May 15, 1996)
33. Any attempt by the prosecutor to “load up” during rebuttal argument by
arguing matters not raised by Defendant in his/her closing argument. Hubbard v.
Matlock, 24 Ariz. App. 554, 540 P.2d 173 (1975) (It is the general rule that the
scope of state’s rebuttal is limited to matters discussed by the defendant during
closing argument.)
34. Any attempt by the prosecutor to deny Defendant a fair trial by interposing
spurious objections and gratuitous interruptions of defense counsel. State v.
Moore, 108 Ariz. 215, 495 P.2d 445 (1972).
35. Any attempt by the prosecutor to shift the burden to the Defendant with
arguments such as “The Defendant could have obtained an independent blood
test” or “The Defendant could have independently analyzed the blood test kit,”
etc. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, (1970); State v. Jones, 182 Ariz.
243, 895 P.2d 1006 (Ariz. App. Div. 1 1994).
Should the prosecutor violate any Order of this Court entered in response
to this motion, the defense will seek dismissal of the instant charge(s) based upon
a claim of jeopardy under the constitutions of the State of California and the
United States and Oregon v. Kennedy, 102 S. Ct. 2083 (1982).
WHEREFORE, the Defendant respectfully requests that this Honorable
Court enter its Order granting the relief herein requested with respect to all
matters and, further, to instruct the state to prevent its witnesses from discussing
matters herein precluded on the trial of this matter.
Respectfully submitted,
___________________
Attorney for Defendant