Court-Martial Trial Practice Blog
I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly. So here is an article of interest.
Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming
From the abstract:
Prosecutor misconduct in closing argument is rampant. Prosecutors make improper arguments because it is a highly effective, yet virtually risk-free, strategy. That is, even if the defense lawyer quickly identifies and objects to the misconduct, the jury still hears the improper argument, the available remedies are toothless, and the offending prosecutor rarely suffers any consequences. This Article proposes an alternative approach for combating this problem. Instead of waiting to object until after the prosecutor makes the improper argument, defense counsel should consider a more aggressive strategy: the pretrial motion in limine. This motion seeks a pretrial order to prevent the misconduct before it occurs, and, in cases where the prosecutor violates the order, it establishes a framework for addressing the misconduct in a meaningful way.
I already do MiL for other issues that can come up in trial from prosecutors, I think I’ll consider adding this one. I may use some quotes in an upcoming CAAF brief on improper prosecution arguments. You can read one of my prior cases — United States v. Garcia, or wait for CAAF to decide United States v. M. next year.