Rhode Island Criminal Defense Manual by Attorney John E. MacDonald

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

PROSECUTORIAL MISCONDUCT

Prejudicial Questions

State v. Ordway, 619 A.2d 819 (R.I. 1992). In a murder trial, the prosecutor's question about the defendant stabbing another boyfriend was so inflammatory that no curative instruction could have neutralized the prejudice to defendant. The prosecutor had not disclosed this prior act in discovery and had no factual basis to ask the question. R.I.S.C. reversed.

• Prosecutor's question was so inflammatory as to render the cautionary instructions inadequate. “The naïve assumption that prejudicial effects can be overcome by instructions to the jury, . all practicing lawyers know to be unmitigated fiction.The well was poisoned and the bell rung, and the resulting effects cannot be altered.” Id. at 828.

State v. Barbosa, 908 A.2d 1000 (R.I. 2006). Prosecutor's question at a felony assault trial lacked a factual basis while implying that the defendant had intimidated the witness. The trial judge denied defendant's mistrial request, but cautioned the jury to disregard the question and answer. R.I.S.C. affirmed.

• The state's witness testified that the defendant did not have a gun, inconsistent with his earlier statement to police. The prosecutor then asked the witness if he had since learned that defendant had received the police report and that witness's address was on it, to which witness answered in the affirmative before defense counsel could object.

• “Even if the words of a particular witness, if not further addressed, could have a prejudicial effect on defendant's right to a fair trial, a motion to pass a case and declare a mistrial will be properly denied if a cautionary instruction is given in a timely manner and is effective in curing the prejudice. Id. at 1004.

State v. McManus, 941 A.2d 222 (R.I. 2008). When arrested for the murder of his wife, defendant had a blood alcohol level of 0.131. At trial, the prosecutor asked the police officer present for the test: “Do you know of any law in the State of Rhode Island that says if you have a blood alcohol level above .10, you can't go out and kill somebody?” The trial judge denied defense counsel's request for a mistrial, but gave a curative instruction and ordered the jury to disregard the “inappropriate” question.

• R.I.S.C. concluded that the jury would not be so affected by the question “that they would not be able to decide the case based on a dispassionate evaluation of the evidence.” Id. at 234.

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