Prosecutor's constitutionally forbidden outburst brings disciplinary charges

The prosecutor's statement attacking an accused's right not to testify at a criminal trial could lead to her censure

Criminal trials are different. Depending on the charges, the accused may be sentenced to a penalty of up to life in prison with no parole or the death penalty. For the state to extract this type of punishment for a crime, it is necessary that it prove guilt beyond a reasonable doubt.

This is accomplished at trial, where a prosecutor, representing the state is required to provide the jury with evidence that proves guilt beyond a reasonable doubt. The prosecutor's job is rather complex. While they are empowered by the state to bring the guilty to justice, their greater duty is to the Constitution, and to see that justice is done.

Winning at any cost

Unfortunately, prosecutors are human and subject to the human desire to win. A criminal case can be very adversarial and competitive as it should be. However, a prosecutor should never allow their zealousness to overcome their duty and work to obtain a conviction at all costs.

In American criminal trials, the accused is never forced to testify on his or her own behalf. The founders had experienced the coercive English criminal system and the right not to testify is a fundamental right, designed to prevent manipulation by prosecutors at trial and it also sends a message to the jury.

It is not the accused who has to prove their innocence, but the prosecution that must prove their guilt. This can be a daunting problem for the prosecution, but it should never resort to tricks and misconduct in an effort to get around these prohibitions and asset to the jury by innuendo and implication what they cannot constitutionally state outright.

In a murder trial, a prosecutor in Memphis stated during her closing, "Just tell us where you were! That's all we are asking, Noura!"

But Madame Prosecutor, that is not the accused's responsibility, but rather yours; to prove where she was to support your arguments and case.

Prosecutorial misconduct?

This outburst and the prosecutor's failure to turn over potentially damaging transcripts of one of the prosecution's witnesses has now reached the Tennessee Supreme Court, not in the typical manner of an appeal of the accused's conviction, but in the form of disciplinary proceedings against the prosecutor.

The Board of Professional Responsibility of the Supreme Court of Tennessee has filed a complaint against two of the prosecutors involved in the case. A panel hearing will be followed by action by the Supreme Court in determining the punishment. The Board has recommended public censure.

Attorney Patrick T. McNally understands well this issue, having recently obtained the reversal of a conviction of a man charged with a sex crime, where during the trial, the prosecutor similarly engaged in just such forbidden commentary on the accused's silence at trial.

At any criminal trial, you want your attorney to aggressively contest prosecutorial misconduct like this, which undermines the very foundation of the American criminal justice system.

Patrick McNally is an experienced attorney who has represented clients in the Tennessee Court of Criminal Appeals, Tennessee Supreme Court and the Sixth Circuit Court of Appeals. For that aggressive defense at trial or on appeal, speak with attorney Patrick T. McNally about your case.

He will review your facts and explain the options and strategies for your trial or appeal. He understands what is necessary to dismantle the prosecution's case and demonstrate errors from the trial court or overreaching by the prosecutor.