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Error for Prosecutor to Imply that Communicating with an Attorney Manifests a Consciousness of Guilt (Error Deemed Harmless Here)

The Second department noted that the prosecutor’s comment implying that communicating with an attorney manifests a consciousness of guilt was error:

In response to evidence proffered by the People that the defendant relocated to a motel after the subject shooting, the defendant called as a witness an attorney whom she had retained after the shooting. To rebut the People’s theory that the relocation indicated a consciousness of guilt, the defendant elicited testimony from that attorney that the defendant intended to surrender to the police, but that the police arrested her before she was able to do so. During summation, the prosecutor posed the rhetorical question: “[I]f you didn’t do anything and you don’t know that detectives are looking for you in respect to a shooting, why did you get an attorney?” The defendant correctly contends that this comment was improper, since the defendant’s retention of an attorney was not probative of her consciousness of guilt … . Nevertheless, contrary to the defendant’s contention, under the circumstances of this case, the error did not deprive the defendant of a fair trial and otherwise does not require reversal … . People v Credle, 2015 NY Slip Op 00548, 2nd Dept 1-21-15

 

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