It is improper and unconstitutional for a prosecutor to comment on a criminal defendant’s failure to testify in his or her own behalf.52 As a general rule, a prosecutor may characterize the State’s evidence as uncontradicted.53 However, the prosecutor’s comments should not be framed in a way to create an inference of guilt in the jury’s mind arising from the failure of the defendant to testify or make a pre-trial statement. Where the sole means of contradicting the State’s evidence is through the testimony of the defendant, who exercises his or her right to remain silent, particular care should be taken in this regard. Context will be important.54 When witnesses other than the defendant who supposedly could support a defendant’s defense are available but are not called to testify, it is not improper for the State to point out that the defendant failed to call such witnesses, as this does not shift the burden of proof, but merely contrasts the weight of the State’s evidence with the evidence adduced by the defendant.55
It is improper to suggest that the police would not arrest someone until they knew that person was guilty, as such a statement shifts the presumption from innocence to guilt.56
It is improper to state that, to acquit the defendant, the jury must conclude that the State’s witnesses lied on the stand. A jury could believe the witnesses and still acquit the defendant if the evidence was not sufficient to establish guilt beyond a reasonable doubt. A jury could also have doubts about the credibility of the witnesses on both sides. A jury is not required to choose between the State’s and the defendant’s version of the facts.57
While it is appropriate to refer to a “victim” of a crime when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue, the term should not be used in cases where the commission of a crime is in dispute.58 It is improper to refer to the defendant as a “criminal,” as that assumes that the defendant committed the charged crime and so is inconsistent with the presumption of innocence.59 It is also improper to refer to photographs of the defendant as “mug shots,” as this suggests that the defendant has been in prior trouble with the police.60
It is improper to refer to the psychological effect of a crime on the victim when such harm is not a required element of the offense. Such reference is designed to appeal improperly to the jury’s sympathies.61
It is improper to suggest to the jurors that they should return a verdict that they could justify to their neighbors after the case has ended.62
It is improper for a prosecutor to urge a jury to convict the defendant in order to prevent the local community from becoming as violent as other communities. By asking the jury to consider the experience of other communities, the prosecutor directs the jury’s attention to matters not only outside the record but as to which the jurors’ personal perceptions may vary widely. Further, appealing to a jury’s fear that a failure to convict may increase violence in the community implies personal risk to each juror. This type of argument improperly deflects the jury’s attention from the task at hand.63
It is improper for a prosecutor to prey upon the jurors’ fears by suggesting to them that, if they do not convict, the defendant will live amongst them.64
In analyzing the permissibility of a prosecutor’s reference to a defendant’s financial condition as motive to commit a crime, the trial judge must carefully weigh the probative value of the defendant’s economic status against the danger of unfair prejudice resulting from such a reference. The lack of money by a defendant might be relevant to show the probability of the defendant’s desire to commit a crime in order to obtain money. However, such evidence appeals to jurors’ economic prejudices and introduces elements of irrelevance and irrationality into the trial which cannot be tolerated in a society based upon the equality of all citizens before the law.65
52. Jackson v. State, 643 A.2d 1360, 1379 (Del. 1994), cert. denied, 513 U.S. 1136 (1995); Robertson v. State, 596 A.2d 1345 (Del. 1991); Dc Shields v. State, 534 A.2d 630, 641 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); Bowe v. State, 514 A.2d 408 (Del. 1986); Jensen v. State, 482 A.2d 105, 115 (Del. 1984); Hughes v. State, 437 A.2d 559, 573 (Del. 1981); State v. Yoder, 541 A.2d 141, 143 (Del. Super. 1987). See also Andrus v. State, No. 190, 2003 (Del. Mar. 12, 2004) (ORDER), disposition reported at 844 A.2d 991 (Del. 2004) (TABLE) (statement that defendant did not show any remorse in his statement to police constituted a statement on the defendant’s right to remain silent); Lewis v. State, 626 A.2d 1350, 1357-78 (Del. 1993) (improper to refer to criminal defendant’s post-arrest silence).
53. Robertson v. State, 596 A.2d 1345, 1356 (Del. 1991); Hughes v. State, 437 A.2d 559, 573 (Del. 1981); Porter v. State, 243 A.2d 699, 701 (Del. 1968); State v. Yoder, 541 A.2d 141, 143 (Del. Super. 1987).
54. See Hughes v. State, 437 A.2d 559, 573 (Del. 1981); State v. Yoder, 541 A.2d 141, 144 (Del. Super. 1987). Cf. Hooks v. State, 416 A.2d 189, 206 (Del. 1980).
55. Benson v. State, 636 A.2d 907, 910.911 (Del. 1994); Smith v. State, 560 A.2d 1004, 1008 (Del. 1989).
56. Hughes v. State, 437 A.2d 559, 573 (Del. 1981).
57. Fensterer v. State, 509 A.2d 1106, 1111-12 (Del. 1986).
58. Jackson v. State, 600 A.2d 21, 24 (Del. 1991). See also State v. Mason, Cr. A. Nos. IN93-02-0279-R1 & IN93-02-0282-R1, slip op. at 9-12, Barron, J. (Del. Super. Apr. 11, 1996) (while it is improper to refer at trial to a complainant in a sexual assault case as a “victim” where consent is the sole defense, the term is not prohibited in all cases).
59. Jackson v. State, 600 A.2d 21, 25 (Del. 1991).
60. Walls v. State, 560 A.2d 1038, 1050 (Del.), cert. denied, 493 U.S. 967 (1989).
61. Ray v. State, 587 A.2d 439, 443 (Del. 1991).
62. Young v. State, 431 A.2d 1252, 1255 (Del. 1980), cert. denied sub nom. Evans v. Delaware, 454 U.S. 972 (1981).
63. Black v. State, 616 A.2d 320, 322-24 (Del. 1992).
64. Black v. State, 616 A.2d 320, 324 (Del. 1992); State v. Williamson, I.D. #9601015299, slip op. at 9-10, Silverman, J. (Del. Super. May 30, 1997).
65. Allen v. State, 970 A.2d 203, 217-18 (Del. 2009).
© 2010 David L. Finger