of consciousness of guilt. State v. Johnson, 216 N.J. Super.
588 (App. Div. 1987).
It is reversible error to comment on the fact that
defendant failed to submit to sodium amytal (truth
serum), because it has not been established that sodium
amytal test results are scientifically reliable. State v.
Blome, 209 N.J. Super. 227 (App. Div.), certif. denied,
104 N.J. 458 (1986).
Prosecutor’s reference, in penalty-phase summation,
to the fact that capital murder defendant never disputed
co-perpetrator’s statement that defendant had stabbed
victim in the genitals, was not an improper comment on
defendant’s absence from trial and on his decision not to
testify, but rather, was based on defendant’s adoption by
silence of co-perpetrator’s statement. State v. Morton,
155 N.J. 383, 458 (1998).
- Name calling
When a prosecutor attacks a defense counsel
personally or demeans his role at trial, he demeans the
profession and the integrity of the trial process. State v.
Thornton, 38 N.J. 380, 397 (1962), cert. denied, 374
U.S. 816, 83 S. Ct. 1710, 10 L.Ed.2d 1039 (1963); State
v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif.
denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.
Ct. 535, 102 L.Ed.2d 566 (1988).
In State v. Acker, 265 N.J. Super. 351 (App. Div.),
certif. denied, 134 N.J. 485 (1993), defendant’s
convictions were reversed on prosecutorial misconduct
grounds in that the prosecutor: called the defense
attorney and the defense absolutely preposterous and
outrageous; argued it was the jury’s function to protect
young victims of alleged sexual offenses; commented on
facts not in evidence and made inappropriate appeals to
the jury.
The Court in State v. Morton, 155 N.J. 383, 457
(1998), found the prosecutor’s statements, which
referred to defendant as a “cold-blooded killer,” and
described defendant’s testimony as “nothing more than
a self-serving pack of lies,” were permissible. The Court
found relevant that the prosecutor’s remarks responded
to defense counsel’s summation argument which
mentioned defendant’s stoic demeanor, and the fact that
defendant’s trial testimony conflicted with that of the
State’s witnesses and with his own taped statement. State
v. Morton, 155 N.J. at 457.
Remarks by the prosecutor that the death penalty
was the only guarantee against defendant’s future acts
and that defendant was a vicious animal are improper.
Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986). It is improper for a prosecutor to
refer to a defendant as a “coward,” liar,” or jackal.” State
v. Pennington, 119 N.J. 547, 577 (1990). In State v.
Bruce, 72 N.J. Super. 247, 251-52 (App. Div. 1961), the
court held that the prosecutor’s summation in which he
called defendants “animals” and “brutes” constituted
reversible error where such statements were not part of
any testimony.The Supreme Court of New Jersey disapproved of the
prosecutor’s conduct where, prior to the trial in a capital
case, the prosecutor arranged several press briefings at
which he stated that defendant committed murders
“because he wanted to see someone die;” that defendant
shot the victim “for the sheer pleasure of seeing her die;”
and that defendant was a “perverted, sick individual.”
State v. Biegenwald, 106 N.J. 13 (1987). Similarly, in
State v. Russo, 243 N.J. Super. 383, 408 (App. Div.
1990), the court held that it was improper for the
prosecutor to refer to defendant’s wife as a “bitch” and the
defense psychiatric experts as “whores.”Personal attacks on defense counsel in particular or
on defense lawyers in general are also not acceptable. State
v. Thornton, 38 N.J. at 396-98; State v. Sherman, 230
N.J. Super. 10 (App. Div. 1988).It is impermissible for a prosecutor to disparage the
arguments of defense counsel as “lawyer talk.” State v.
Adams, 320 N.J. Super. 360, 369-71 (App. Div. 1999).
A prosecutor’s accusation that defense counsel is
concealing the client’s guilt through deception is also
impermissible. State v. Sherman, 230 N.J. Super. at 16.
See State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.
1991); State v. Pindale, 249 N.J. Super. 266, 286 (App.
Div. 1991), appeal after remand, 279 N.J. Super. 123,
certif. denied, 142 N.J. 449 (1995).V. DIRECT/CROSS EXAMINATION
It is impermissible for a prosecutor to ask a question
which have no factual basis, and from which untrue
inferences could be drawn, thus diverting the jury’s
attention from the relevant facts. State v. Koedatich, 112
N.J. 225, 320-23 (1988), cert. denied, 488 U.S. 1017,
109 S. Ct. 813, 102 L.Ed.2d 803 (1989). See State v.
Pennington, 119 N.J. 547, 578-83 (1990); State v. Rose,
112 N.J. 454, 515-16 (1988).