RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Opening Statements

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

PROSECUTORIAL MISCONDUCT

Opening Statements

State v. Colvin, 425 A.2d 508 (R.I. 1981). In a delivery of controlled substances trial, the prosecutor referred to prior uncharged drug sales by the defendant. Defendant moved to pass the case, was denied the motion, and then moved for a cautionary instruction. The trial judge cautioned the jurors that statements of counsel are not evidence. R.I.S.C. reversed defendant’s conviction and remanded.

• The trial judge’s instruction was insufficient to cure the prejudice: “.an admonition to the jury that opening or closing statements do not constitute evidence is insufficient to correct the prejudicial error committed in the opening statement.” Id. at 512.
• Use this language to both move to pass the case and then to justify strong language in the cautionary instruction.

State v. Casas, 792 A.2d 737 (R.I. 2002). Prosecutor in a possession with intent to deliver case improperly told the jury that the state had been investigating the defendant’s drug trafficking for years even though defendant had moved in limine to preclude the state from such references. The trial court granted a mistrial and denied defendant’s double jeopardy motion to dismiss. R.I.S.C. affirmed.

• Although the trial judge had not ruled on the motion in limine prior to opening statements, R.I.S.C. noted that the state was on notice that the issue was “forbidden territory.” Id. at 740.
• In order to prevail on a double jeopardy challenge following dismissal on grounds of prosecutorial misconduct, defendant must show that the misconduct was intended to goad defendant into moving to pass the case.
• Prosecutor’s misconduct was unintentional because it happened early in the trial (rather than later in response to a rapidly deteriorating case), because defense counsel initially responded that he had no evidence that the misconduct was intentional, and because the prosecutor was young, inexperienced, and unfamiliar with the concept that character evidence is inadmissible to establish guilt.

State v. Andujar., 899 A.2d 1209 (R.I. 2006). Defendant on trial for soliciting another to commit murder was entitled to introduce the fact of his prior acquittal for charges of sexual assault perpetrated against the same victim, following the prosecutor’s reference to the prior charges during opening and closing arguments.

• Although juries are instructed that statements made in opening and closing arguments are not evidence, the prosecutor’s statements created the unavoidable impression that defendant had sexually assaulted the intended victim and wanted her murdered to prevent her from testifying.
• Evidence of a defendant’s prior acquittal is admissible when evidence about that conduct is introduced by the state. The acquittal may be presented to the jury either by stipulation, by the parties’ testimony, or by an instruction from the trial justice.

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