Presentation, at three separate trials of co-
defendants, of alternative theories as to which defendants
actually shot victims and fact that prosecutorial
arguments made at defendant’s trial were inconsistent
with arguments made at co-defendants’ trials were not
improper; prosecutor properly presented different,
plausible interpretations of conflicting evidence that did
not conclusively establish who were the shooters. State v.
Roach, 146 N.J. at 221-23.
In summation, when prosecutor invited the jury to
use the “product rule” and calculate the likelihood that
defendant’s shoe size and type, blood type, and hair
would match those found at the scene of the crime, the
Court held this was permissible. State v. Harvey, 151 N.J.
at 214-15. The Court noted that the “comment was
more a rhetorical device than an invitation for the jury to
apply a mathematical formula” and was made in response
to defendant’s allegations. State v. Harvey, 151 N.J. at
216.
It was error when a prosecutor, during a discussion of
mitigating factors in a capital case, implied that
defendant was attempting to pass blame onto others,
thus excusing his own conduct. State v. Cooper, 151 N.J.
326, 402-03 (1997). However, the trial court’s
instruction that the purpose of the mitigating evidence
was not to excuse the crimes, but rather to explain and to
present extenuating facts about defendant’s life,
remedied the error. State v. Cooper, 151 N.J. at 402-03.
It was not error when prosecutor in summation
referred to killing during robbery as “execution-style
murder,” when the comment was supported by strong
evidence, such as the fact that defendant’s gun was
touching or near to the victim’s head at the time of the
shot. State v. Loftin, 146 N.J. 295, 387-88 (1996).
A prosecutor may comment in summation on
defendant’s failure to call an alibi witness. State v. Driker,
214 N.J. Super. 467 (App. Div. 1987); State v. Hickman,
204 N,.J. Super. 409 (App. Div. 1985). In State v.
McBride, 211 N.J. Super. 699 (App. Div. 1986) the court
held that a prosecuting attorney may ask a jury to draw
an adverse inference from a defendant’s failure to call a
witness, but “only if the trial judge first has found, out of
the presence of the jury, that the witness is within the
defendant’s power to produce and that the witness’s
‘testimony would [be] superior to that already utilized in
respect to the fact to be proved.’” State v. McBride, 211
N.J. Super. at 701 (quoting from State v. Carter, 91 N.J.
86 (1982)).
Prosecutor’s closing statement that defendant had
removed his hood and the victim’s blindfold before
killing him was permissible -- although such facts were
not clearly supported in the evidence -- when defense
counsel did not object, the jury had been thoroughly
instructed that the summations of counsel were not
evidence and the jury likely knew that both sides were
offering their interpretation of the evidence. State v.
Harris, 141 N.J. 525, 560-61 (1995).A prosecutor may not vouch for the credibility of a
witness. State v. Marshall, 123 N.J. at 156; State v.
Johnson, 287 N.J. Super. 247, 267 (App. Div. 1996).
However, during argument to persuade the jury that the
witness is not worthy of belief, a prosecutor may point out
discrepancies in a witness’ testimony or a witness’
interests in presenting a particular version of events. State
v. Purnell, 126 N.J. 518, 538 (1992); State v. Johnson,
287 N.J. Super. at 267.A prosecutor cannot personally vouch for credibility
of police officers by suggesting charges would be brought
against them if they lied. State v. Frost, 158 N.J. at 84-- See State v. Goode, 278 N.J. Super. 85, 90 (App. Div.
1994)(recognizing that it was improper for prosecutor to
tell jury that police had no motive to lie); State v. Staples,
263 N.J. Super. 602, 605-06 (App. Div. 1993)(prosecu-
tor improperly argued that law enforcement officers
would not lie, because to do so would jeopardize their
careers); State v. West, 145 N.J. Super. 226 (App. Div.
1976), certif. denied, 73 N.J. 67 (1977).
A prosecutor can appropriately respond to a defense
attack on a police officer’s credibility by telling the jury
that the police officer had nothing to gain by lying,
however. State v. Rivera, 253 N.J. Super. 598, 605-06
(App. Div.), certif. denied 130 N.J. 12 (1992).In capital case, a prosecutor may not comment on the
evidence in a manner that serves only to highlight the
victim’s virtues in order to inflame the jury. State v.
Timmendequas, 161 N.J. at 587-88. Especially in “close
and sensitive” cases involving sexual assault, and more so
where the victim is a child, improper appeals by
prosecutors “calculated to arouse sympathy for the victim
and hate and anger against the defendant have a strong
potential to cause a miscarriage of justice.” State v. W.L.,
292 N.J. Super. 100, 110-11 (App. Div. 1996)(reversing
conviction for sexual assault of child).So long as there is evidence to support the
prosecutor’s insinuations regarding the credibility of
defense witnesses, the prosecutor may attack the