Curbing Prosecutorial Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial Arguments
White, Welsh, American Criminal Law Review
I. INTRODUCTION 1147 II. WHY PER SE RULES ARE APPROPRIATE 1157 A. Ensuring Reliability in Capital Sentencing 1158 B. Deterring Clearly Improper Penalty Arguments 1163 III. CRITERIA FOR ESTABLISHING PER SE PROHIBITIONS ON PROSECUTORS' PENALTY TRIAL ARGUMENTS 1168 IV. EXAMPLES OF APPROPRIATE PER SE PROHIBITIONS 1171 A. Argument that Misleads the Jury as to the Circumstances under Which the Defendant Will be Released from Prison 1172 B. Argument that Relies Upon a Religious Text in Support of Imposing the Death Penalty 1177 C. Argument Referring to the Prosecutor's Discretionary Decision to Seek the Death Penalty 1179 D. Argument that the Death Penalty Should be Imposed to Protect Society Rather than for Reasons Related to the Facts of the Case 1181 V. CONCLUSION 1184
"You know, it's not always wrong to kill. It's maybe always difficult to kill; but if you kill in self-defense, that's not wrong. If you kill in a just war, that is not wrong. It's right. If somebody is going to kill your child and you have a chance to kill them to prevent it, would you do it? Of course. Kill Daryl Shurn." (2)
In the face of mounting concerns about the operation of our system of capital punishment, (3) courts are likely to play a more active part in monitoring specific aspects of capital trials. Since 1972, when Furman v. Georgia (4) abolished the then-existing system of capital punishment, the Court has imposed significant constitutional restrictions on our system of capital punishment, thus requiring courts to monitor various aspects of capital sentencing. (5) Starting in the mid-eighties, however, both the Supreme Court and many lower courts have been reluctant to impede the imposition and carrying out of death penalties. (6) As a result, over the past five years, there have been more executions per year than at any time during the past four decades. (7) Recent concerns relating to both specific executions (8) and the overall application of the death penalty seem likely to alter courts' perception of their role in regulating our system of capital punishment.
If courts do decide to become more involved in monitoring our system of capital punishment, they may be inclined to begin by devoting closer attention to particular issues that arise in capital trials rather than addressing broad questions relating to the fairness of the system. (9) Since critics have identified prosecutorial misconduct as one of the significant causes of unfairness in capital sentencing, (10) scrutinizing prosecutors' arguments in capital cases, particularly their closing arguments during the penalty phase of capital trials, is an appropriate area of inquiry.
Most lawyers believe that their closing arguments play a critical part in shaping juries' decisions. The prosecutor's closing argument at the penalty trial of a capital case may be especially significant because of the context in which it occurs. In most death penalty trials, the prosecutor's argument occurs after the defendant has been convicted of a capital crime and both sides have been given an opportunity to present additional evidence relating to whether the defendant should be sentenced to death or given a lesser punishment. (11) The prosecutor is generally allowed to make the first closing argument and, if the defendant's counsel elects to make a closing argument, to make the final argument in rebuttal. (12) Thus, in most cases, the prosecutor's final closing argument will be the last words that the sentencing jury hears from either attorney. …