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Common Areas of Prosecutor Misconduct in DUI Trials

Many prosecutors who prosecute DUI cases are relatively young and inexperienced in conducting jury trials.  Others fail to see anything but getting a conviction.  As a result of naivete or professional ambition, it is common to witness prosecutorial misconduct in a DUI trial.  Of more concern, is that many defense lawyers are either not aware of or do not object to these areas of misconduct.   

Commenting on the Defendant's Right to Remain Silent

One of the most egregious examples of prosecutorial misconduct occurs where the prosecutor encourages the jury to infer that the defendant must be guilty because he failed to testify at trial.  In Ohio DUI / OVI cases, it is improper for a prosecutor to comment directly on the defendant's failure to testify or to present witnesses or evidence. The prosecutor might subtly make the same point by claiming that the chemical test result was "uncontradicted," or that the police officer's opinion on impairment was "unrefuted".   Each of these oblique references to the defendant's failure to testify or present evidence is  improper.  Defense counsel should object and move for a mistrial. 


Villifying the Defendant


Many times our clients are parents of young kids.  The client may enjoy an evening out with friends or their spouse only to get arrested for DUI / OVI before making it home.  This scenario presents an opportunity for a prosecutor to comment on the kids being home and the parent-defendant out drinking.  This is an improper attempt to villify the defendant. 

In the event a client testifies, the prosecutor will certainly challenge the client's version of events.  However, It is  improper for a prosecutor to ask a defendant whether by accepting the defendant's testimony, the jury would have to conclude that a police officer was lying. 

Attacking Defense Counsel


If a defendant is being represented by a reputable or "expensive" lawyer, it is improper for a prosecutor to insinuate that the client "must be guilty" because he/she hired a specific attorney.  Commenting on how much a defendant may be spending on a lawyer or experts is also improper.

In drunk driving cases, it would be improper for the prosecutor to insinuate or claim that defense counsel's argument that field sobriety tests were unfair and biased was made in bad faith and was really nothing more than a fabricated defense designed to mislead the jury. Similarly, it would be improper to argue that the prosecutor "knows" defense counsel and that the prosecutor can tell when defense counsel really does believe his client is guilty.

Any attacks on defense counsel, whether direct or through insinuation or innuendo, are both improper and unethical and they must be challenged. They also are designed to deprive the defendant of the right to a fair trial. Both the defense counsel's integrity as well as the client's constitutional rights are at stake.

Trumpeting the Prosecutor's Office

Prosecutors love to paint themselves as guardians of the community. He or she may try to depict himself or herself as a truthful, honest, and credible person who is the jury's friend and advocate. Prosecutors sometimes try to enhance their credibility with juries by talking about the important role that they play in "keeping drunk drivers off the road," "by protecting the public against criminals" and "by making sure that criminals are brought to justice." These attempts to "[stress] their own personal integrity and the prestige of their office" is misconduct. ABA Standards for Criminal Justice §3-5.8(b).

It is also improper for a prosecutor to attempt to "vouch" for a witness directly or to state or suggest indirectly that matters outside the record would support the witness's testimony. Remember that prosecutors are not witnesses, they are prosecutors and any attempts by them to become unsworn witnesses must be challenged immediately and forcibly as being improper.

Misrepresenting the Testimony


I have found the number one examle of prosecutorial misconduct is misrepresenting the record.  Specifically, prosecutorial misconduct involves misrepresentations of what has transpired during the trial by either deliberately mischaracterizing testimony or documentary evidence, or by going outside the record on a hunt for incriminating evidence. For example, if a prosecutor "relies" on a document which was never introduced into evidence as a means of attempting to establish guilt, the defense should immediately object to these improper remarks.

            Prosecutors may also try to convince the jury that it must convict the drunk driver or there would be dire consequences for the public. The classic closing argument goes something like this:

Now, we often hear, we often read in the paper or hear on television or anything else, something that happens, there's a lot of public sentiment at this point against drinking and driving, causing accidents on the highway. And, you know, you read these things and you hear these things and you think to yourself, "my God, they ought to do something about that" ... well, ladies and gentlemen, the buck stops here. You jurors are the "they".

Finally, the prosecutor cannot attempt to influence the jury to return a guilty verdict by suggesting that they need not be concerned if they are wrong because any errors they make can be corrected by an appellate court. In this regard, it would be improper for a prosecutor in a vehicular homicide case to argue as follows:

Ladies and Gentlemen, Bob Smith is dead. And we know he's dead because his vehicle was struck by the vehicle driven by the defendant. We also know alcohol was found in the defendant's system. Now we have heard from a number of witnesses who have testified that the defendant appeared to be intoxicated, that he staggered and swayed and was crying. Sure, the defense claims that the defendant was injured in the accident and that alcohol played no role in the case. The defense claims the accident was caused when a tire blew and the defendant lost control.

Ladies and Gentlemen, a man is dead. Alcohol was in the defendant's system. The police officer, Officer Martin, in his professional opinion, came to the conclusion that the defendant was under the influence of alcohol. The state's accident reconstruction expert witness testified that in his opinion the tire blew after the accident, not before as the defendant contends. The evidence is sufficient to prove guilt beyond a reasonable doubt and that should be your verdict.

If the defendant does not accept the verdict, then he has the right to appeal and if there are any errors made by you, they can always be corrected by a higher court. So do what's right based on the evidence in this case. Return a guilty verdict and give justice to Bob Smith.

This argument is improper as it tries to assuage any "reasonable doubt" the jury may have by informing them that if they are wrong, their error can be corrected and the defendant will not be harmed.

Inflaming the Jury


Prosecutors also engage in misconduct when they attempt to appeal to the emotions of jurors and introduce inflammatory and prejudicial physical evidence.  The most common example is introducing the most horrific photographs of a victim.  Also, inflaming a jury would include arguing  in such way as to incite the jury to seek vengeance rather than to do justice.

It is also improper and reversible error for a prosecutor to repeatedly ask  jurors to con­sider what might have happened if they or a small child had been on the road on the night of the alleged offense. Whenever arguments invite jurors to put themselves into the "shoes of a victim," they are gener­ally improper. Where the misconduct is flagrant, it can constitute reversible error.

Many prosecutors do not know the boundaries for proper prosecutorial conduct and need to be educated.  Other prosecutors do know the boundaries and are willing to overstep them in an effort to get a conviction at any cost.

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