PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL.

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial:

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… [T]he prosecutor acted as an unsworn witness when he addressed the impeachment of one of the People’s main witnesses, a sister of the complainant (hereinafter the sister). During cross-examination, the sister was impeached by inconsistent testimony she gave in the grand jury proceeding. During summation, the prosecutor argued to the jury that defense counsel had “selected certain portions out of context in the grand jury minutes,” and that the jury “didn’t get the entire grand jury minutes” … . These comments were particularly prejudicial. The sister’s testimony, and thus her credibility, were crucial to the People’s proof against the defendant, which was less than overwhelming. The prosecutor’s comments suggested, without any evidentiary support, that the jury should disregard the sister’s grand jury testimony, in which she failed to name the defendant as a participant in the subject assault, because there was more to the testimony than they knew.

In addition, in reference to the father of the complainant and the sister, who was present during the subject assault but was not called to testify, resulting in a missing witness charge, the prosecutor improperly suggested, and invited the jury to speculate, that the father would have given testimony supportive of his children had he been called to testify … . People v Ramirez, 2017 NY Slip Op 03780, 2nd Dept 5-10-17

 

CRIMINAL LAW (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/ATTORNEYS (CRIMINAL LAW, PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ACTED AS AN UNSWORN WITNESS DURING SUMMATION, PROSECUTORIAL MISCONDUCT MANDATED A NEW TRIAL)