Prosecutorial misconduct may occur where a prosecutor in a criminal case makes in an inappropriate argument or improper comments during the opening or closing statements of a trial. Generally, a prosecutor must stick to the facts presented at trial and the question of guilt, and avoid arguments or statements meant to inflame passions or prejudices. In the recent case of State v. Smith, M2013-00733-CCA-R3-CD (Tenn.Crim.App. 2-25-2014), the Tennessee Court of Criminal Appeals rejected a defendant's contention that it was prosecutorial misconduct for the prosecutor, during closing argument, to compare the defense theory to "Leprechauns and Fairy God Mothers."
In a trial for felony DUI arising from a traffic accident caused by the defendant's vehicle, the defense theory was that the defendant was not driving. Though the defendant himself did not testify, a defense witness said that the defendant typically hired another individual to drive his truck because the defendant did not have a valid license. The witness also said that person had been driving the truck on the morning of the accident. But the witnesses at trial who were actually at the scene of the accident or arrived shortly thereafter (including the responding investigating officers) did not see or hear reference to any other person who had been in the truck other than the defendant.
In arguing that the defense theory was a fabrication, the prosecutor in closing argument compared the suggestion that there had been another person driving the truck to "Leprechauns and Fairy Godmothers." The trial court and the Court of Criminal Appeals determined this was not improper argument, as it was indeed the state's theory that the defense theory was a fabrication and not supported by any of the witnesses at the accident scene.
For more information on what kind of argument may be prosecutorial misconduct at trial, contact Hindman & Associates.