June 23, 2011
People v. Davis Prosecutorial Misconduct
Facts: During closing argument, the prosecution described the stages a “victim” goes through after an alleged sexual assault. However, neither an expert nor any lay witness provided support for the prosecution’s stage of whatever theory.
Issue: Whether the prosecutor committed prosecutorial misconduct by arguing in closing facts and evidence not in evidence – namely the stages the prosecutor claim a complaining witness goes through after a sexual assault?
Reasoning: First, thankfully, the defense objected and avoided the dread ‘plain view’ review. However, the Court of Appeals refused to review it for constitutional harmless error. The CofA reviewed the issue under a non-constitutional harmless error analysis. The CofA stated the standard as, “Trial error will be disregarded as harmless when there is no reasonable probability that the error contributed to the defendant’s conviction.”
On appeal, Mr. Davis argued the prosecution argued rape trauma syndrome unsupported by any evidence, replete with a slide shows showing the stages of rape trauma syndrome. The state essentially claimed, um, no sir, did not because the prosecutor did not say ‘rape syndrome.’ The CofA wisely saw through the state’s argument, and found that the prosecutor committed prosecutorial misconduct by arguing facts not in evidence. Further, the CofA held there was a reasonable possibility the prosecutor’s misconduct contributed to Mr. Smith’s conviction. The CofA reasoned, “By making such a detailed argument about the supposed ‘stages’ experienced by trauma victims, the prosecutor implied that he had specialized knowledge and expertise in such matters, perhaps derived from his position as a deputy district attorney who might be experienced in dealing with such victims. This argument improperly encouraged jurors to rely on such supposed knowledge and expertise, rather than to limit their deliberation to the facts in evidence and the reasonable inferences therefrom.”