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Prosecutorial misconduct in closing arguments: how far is too far?

Axelrod & Associates, P.A.

How far is too far when a prosecutor makes inflammatory statements in their closing arguments to jurors? Is it prosecutorial misconduct?

Is it ever okay for a prosecutor to purposely inflame the passions and prejudices of jurors? Do the ends justify the means when the prosecutor believes he or she is taking a dangerous person off the street?

Is it acceptable for a prosecutor’s guiding principle to be winning their case? Is that what the public wants to see? Is that what the ethics rules require, or is it prosecutorial misconduct?


The ABA standards for criminal justice provide that “the duty of a prosecutor is to seek justice, not merely convict.”

The US Supreme Court, in Berger v. US, says that:

A prosecutor may prosecute with earnestness and vigor, indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones…. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Similarly, Justice William Douglas stated:

The function of the prosecutor under the federal Constitution is not to tack as many skins of victims as possible against the wall. His function is to vindicate the rights of the people as expressed in the laws and give those accused of crime a fair trial.

A prosecutor’s duty is not to seek convictions, but rather to:

  • Seek justice,
  • Strike hard blows, but not foul ones, and
  • Ensure fair trials.

When a prosecutor makes inflammatory statements in closing argument, is that prosecutorial misconduct?

Of course it is – although the Office of Disciplinary Counsel is loathe to cross any of our state’s prosecutors. A more practical guide for when this conduct crosses the line is what the appellate courts have to say about it and when they have reversed convictions based on prosecutorial misconduct in closing arguments.

The rule, announced by the US Supreme Court in Donnelly v. DeChristoforo, is that there is no appellate relief based on improper closing arguments by a prosecutor “unless the argument so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

Let’s look at a few examples of prosecutors who crossed the line and what the appellate courts had to say about it.

“Here’s Johnny!”

The New Jersey Supreme Court recently overturned a bank robbery conviction where the prosecutor showed jurors a photo from The Shining depicting the scene where Jack Nicholson yells, “Here’s Johnny!” after smashing through a door with an axe to murder his wife and son:

During closing arguments in the case against Damon Williams, the prosecutor showed jurors a photo from the movie “The Shining” depicting a character played by Jack Nicholson telling his terrified wife and son, “Here’s Johnny!” moments after breaking through a door with an axe.

There is no valid purpose to attempt to connect a defendant to a deranged, murderous, fictional character from Stephen King’s imagination other than to inflame the jurors, and to convict the defendant on a basis that has nothing to do with his actual case.

State v. Randall: Is it Okay to Compare the Defendant to a Cockroach?

How about in SC? That would never happen here, right?

In State v. Randall, the prosecutor compared the defendant – along with