credibility of defense witnesses. State v. Crisantos
(Arriagas), 102 N.J. 265 (1986). See also State v. Gilliam,
224 N.J. Super. 759 (App. Div. 1988).
A prosecutor should not note that he or she would
“never” make a deal with a witness because the witness
was part of a crime, if evidence of such criminal activity
was not before the jury. State v. Wilson, 128 N.J. 233,
241-42 (1992). Yet, a prosecutor’s summation
comments regarding whether certain key witnesses did or
did not receive “deals” for their testimony was not
improper, where the record clearly supported the
prosecutor’s statement that one witness received nothing
in exchange for his testimony, the prosecutor’s comment
as to another witness was merely a response to a defense
claims, and the prosecutor’s statements as to third
witness, who testified in exchange for a lesser charge, were
forthright. State v. Johnson, 287 N.J. Super. 247, 266
(App. Div. 1996).
C. Appeals to the Jury
A prosecutor should not provide his personal opinion
about defendant’s guilt. Nor should he or she, during
summation of the penalty phase of a capital case, “suggest
that the jury’s deliberation be influenced by the need to
protect society from crime.” State v. Ramseur, 106 N.J. at
321-22. See State v. Coyle, 119 N.J. 194, 230-31 (1990).
Prosecutor’s remark during his opening statement
which attempted to instill in the members of the jury a
fear for their own safety was improper but did not
constitute plain error in the entire context of the trial.
State v. Porambo, 226 N.J. Super. 416 (App. Div. 1988).
Prosecutor’s statement, in closing argument in
prosecution for drug offenses, that the jury should “send
a message” to defendant and the community was
inflammatory and deprived defendant of his right to a fair
trial. State v. Hawk, 327 N.J. Super. 276, 281-82 (App.
Div. 2000)(such argument in closing deprived
defendant of his right to a fair trial). See State v. Rose, 112
N.J. 454, 519-21 (1988)(Prosecutor’s statements
during summation in penalty phase of capital murder
prosecution, urging jury to sentence defendant to death
to deter him from future acts of violence and to send a
message to society that conduct such as defendant’s
would result in death penalty, were improper).
D. Specific Comments Which are Prohibited
Prosecutor cannot comment on defendant’s post-
arrest silence in summation in order to assert that
defendant’s alibi defense was fabrication. State v. Deatore,
70 N.J. 100, 115-16 (1976); State v. Marshall, 123 N.J.
1, 118 (1991); State v. Lyle, 73 N.J. 403, 410 (1977);
State v. Pierce, 330 N.J. Super. 479, 490-92 (App. Div.
2000). However, there is a distinction between the kind
of silence that enjoys constitutional protection and
silence that constitutes conduct inconsistent with a
defendant’s trial testimony. See State v. Burt, 59 N.J. 156
(1971), cert. denied, 404 U.S. 1047, 92 S. Ct. 728, 30
L.Ed.2d 735 (1972). A prosecutor may also not focus on
a defendant’s post-Miranda warning silence in
summation. State v. Schumann, 111 N.J. 470, 477
(1988).The court in State v. Jenkins, 299 N.J. Super. 61, 65-
69 (App. Div. 1997), held that the prosecutor’s
summation comments on defendant’s post-arrest silence
were justified, however, where defendant raised the issue
during direct examination and defense counsel declared
on summation that defendant was never permitted to
explain to the State what occurred on the night in
question.A prosecutor may not misuse hearsay testimony
about defendant’s prior offenses (i.e. what defendant
allegedly told the victim, a minor who did not testify).
These statements constitute reversible error. State v.
Schumann, 111 N.J. at 477-80.In State v. Micheliche, 220 N.J. Super. 532, 541-42
(App. Div.), certif. denied, 109 N.J. 40 (1987), the
defendant testified that his confession was untrue and
that he had given it only out of fear that his accomplice
would kill him in jail if he denied his own involvement.
The prosecutor’s question on cross-examination whether
defendant or his attorney had ever informed the
prosecutor’s office as to the true reason for his confession
violated defendant’s right to remain silent. State v.
Micheliche, 220 N.J. Super. at 541-42.A prosecutor’s comments concerning defendant’s
failure to tell police about the alleged presence of a friend
during the burglary does not invade defendant’s
constitutional right to remain silent at the time of the
apprehension, if defendant raises the issue during his own
direct examination and relevant cross-examination. State
v. Powell, 218 N.J. Super. 44 (App. Div. 1987).The prosecutor’s comments on defendant’s failure to
turn himself in for two weeks when he knew the police
were looking for him did not infringe on defendant’s
right to remain silent as defendant’s flight was evidence