Prosecutorial Misconduct During Closing Argument in OWI Cases

by Patrick T. Barone

It is rare for a prosecutor to specifically intend to commit misconduct.  Just like defense attorneys, prosecutors are – by and large – ethical and honest.  An aggressive and zealous prosecutor can be admired for his or her commitment to the process.  Just like defense attorneys, prosecutors do not always know the law, or the rules, or know that their conduct has abrogated either.  But, when by accident or design a lawyer’s zealousness at trial crosses the line to misconduct, then everyone suffers, including our system of justice itself.

 While it is possible for prosecutors to commit misconduct during any phase of a drunk driving trial, the two most common areas are jury voir dire and closing argument.  In either instance, prosecutorial misconduct is wrong.  It is not excusable as a means to convict the guilty, and it is abhorrent in the conviction of the innocent.  Misconduct has no place in a criminal justice system that strives to be fair, to accurately convict the guilty and to protect the accused.  It undercuts public trust and impugns the reputations of the majority of prosecutors who uphold the law and live up to their obligation to seek justice.1

 Seventy-five years ago, in reversing a conviction because of prosecutorial misconduct, the United States Supreme Court specified the paramount obligation of a prosecutor:2  “[A] prosecutor has a duty to refrain from improper methods calculated to produce a wrongful conviction3… [While he] may strike hard blows, he is not at liberty to strike foul ones.”4  The Court emphasized that the critical role the prosecutor plays in a judicial system like ours that is aimed at justice, not simply conviction: the prosecutor “is the representative . . . of a sovereignty whose . . . interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”5

 Prosecutorial misconduct is an important concern in society, regardless of the guilt or innocence of the criminal defendants involved in the individual cases.  Prosecutorial misconduct fundamentally perverts the course of justice and costs taxpayers millions of dollars in protracted litigation.  It undermines our trust in the reliability of the justice system and subverts the notion that the system is fair.6

 Consequently, it is important for defense attorneys to understand what is and is not misconduct, and to stand ready to object early and often whenever such misconduct occurs.  What follows is a non-exhaustive list of categories into which prosecutorial misconduct may arise:

1.  Exercise of Right to Remain Silent or
Failure to Obtain Independent Test:

 The right to remain silent will rarely be an issue in drunk driving cases.  This is because most of the incriminating statements are made during the initial roadside investigation before an arrest has occurred.  What is far more likely is a reference to a defendant’s failure to take a chemical test or fail to request an independent test.  Courts in two states have ruled that it is impermissible for a prosecutor to mention a failure that a defendant refused to submit to a breath test,7 or fail to request an independent test.8  In part, the reason for these rulings is that commenting on a defendant’s failure to request an independent chemical test would seem similar to commenting on a defendant’s failure to testify.  This is directly impermissible9 because “[I]t only takes a single comment…to remind a jury that the defendant has not testified and to fix in the jurors' minds the impermissible inference that the defendant is guilty merely because of his exercise of that right.”10 Indirect comments are also impermissible11.  Where a prosecutor commented on defendant’s ability to obtain independent test, it was improper due to the fact that this evidence was not discussed in testimony.12

2.  Comments on Defense Counsel or
Counsel’s Arguments:

 Prosecutors might, if even in a subtle way, denigrate a defense attorney’s closing argument.  A prosecutor may not suggest that defense counsel is intentionally attempting to mislead the jury.13 It is highly improper for a prosecutor to attack the integrity of defense counsel by arguing, for example, that “[w]hat you see is a classic defense tactic of pointing the finger—pointing the finger at the police, at the prosecutor, anything to divert your attention from the elements and the facts in this case and the evidence.”14

 The prosecution also clearly exceeded the bounds of proper argument when it was suggested that (1) that defense counsel had attempted to ‘confuse the issue[s]’ and ‘fool the jury’ by way of ‘tortured questioning,’ ‘deliberately loaded questions,’ and ‘a deliberate attempt to mislead,’ (2) that defense counsel had attempted to ‘confuse’ and ‘mislead’ the jury by using ‘red herrings’ and ‘smoke and mirrors,’ and (3) that defense counsel had attempted ‘to deter [the jury] from seeing what the real issues are in this case.’15

 Similarly, it is improper for prosecutor to state overall personal frustration with defense tactics16 or stating to the jury “that’s the sort of defense you make when nothing else will work,”17  that defense counsel was “cranking up the fog machine – let’s try to conjure up reasonable doubt.”18

 Making disparaging remarks about defense counsel, such as referring to objections as paranoid and improper,19 stating defense counsel is out of touch with realities and concerns of juror’s world,20 or generally attacking the defense attorney,21 are all improper.  It is also improper to refer to defense argument as “ludicrous.”22  When telling the jury that the prosecution has a duty to seek the truth while the defense is concerned only with advancing a story in an effort to exonerate the defendant of the charge, the prosecution has improperly invoked the prestige of the office.”23

 However, complimenting defense counsel can also be misconduct, as when the prosecutor states that it’s the defense attorney’s job to cross-examine the witnesses and he has his admiration because he is a skilled practitioner of that art.24

3.  Vouching for the Credibility of a Witness or
Offering a Personal Opinion About the
Breath or Blood Test, or
Evidence of the Defendant’s Guilt:

 Federal courts have generally recognized two types of objectionable vouching. The first type impermissibly places the government's prestige behind the witness to bolster the witness' credibility.25  The second type occurs when the prosecutor invites the jury to believe that there is other evidence, known to the prosecutor but not introduced into evidence, justifying the prosecutor's belief in the defendant's guilt.26

 While a prosecutor may not often actually vouch for a witness, they much more commonly may vouch for a chemical test, which in essence, is a witness against the defendant.  Beware of any personal opinion expressed about the reliability of the test because this is strictly precluded.  This would include the common statement that the DataMaster is used by police agencies throughout the state when such testimony is not actually received into evidence by a competent witness. (See also misstatements of fact below). This is because a prosecutor may not vouch for a witness, or state an opinion that one has lied.27 These comments can convey the impression that evidence not presented but known to the prosecutor supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of imprimatur of the government and may induce the jury to trust the Government’s judgment rather than the jurors’ own view of the evidence.28  Specifically, it is “plain error . . . [to] suggest that evidence presented by the prosecution must be true and, by logical inference, that the prosecutor has special knowledge of the veracity of witnesses.”29

 Additionally, the prosecutor cannot assert that an independent judge determines whether a witness who pled earlier is lying, as the government has no independent means of discerning truthfulness.30  Most importantly, prosecutors are not allowed to express their personal opinion of a defendant's guilt.31

4.  Golden Rule Arguments: Asking Jurors to
Put Themselves in Place of Victim:

 There are two possible victims in a drunk driving case.  The first is someone who was actually hurt in an accident caused by the defendant.  The other is the societal victim endangered by the defendant’s very act of driving drunk.  Reference to either is precluded.  A prosecutor’s appeal to the jurors to place themselves in the position of the supposed ‘victim’ of the crime involved was an entirely unjustified ‘golden rule’ argument of a type which has been universally condemned.32  A prosecutor may not appeal to the jury to sympathize with the victim.33 

5.  Misstatements of Fact / Alluding to
Facts Outside Record:

 Any reference to the science behind field sobriety testing: the legal limit, the defendant’s tolerance to alcohol, the amount of alcohol consumed, or any other fact outside the record amounts to misconduct.  This is because a prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences that may be drawn therefrom.34  It is improper for a prosecutor to misstate the record by implying that defendant lied35 or to imagine conversations between the defendants.36  It is improper for the prosecutor to engage in a speculative argument.37 The prosecutor also must not claim that one of her witnesses had been “muzzled.”38  Nor can the prosecutor describe the process whereby the court makes evidentiary decision as “crazy.”39

6.  Misstating the Law of Reasonable Doubt,
Presumption of Innocence of Burden of Proof:

 Listen carefully whenever a prosecutor speaks to the jury about any of the defendant’s fundamental rights.  It is improper for a prosecutor to make statements such as “even the guilty have a right to trial”. 40  Similarly, it is improper for prosecutor to undermine the presumption of innocence by arguing that every defendant is entitled to the strongest possible defense,41 or to argue that at some point the presumption of innocence should have slipped away.42  Also, misstating the law on reasonable doubt is so egregious that it can never be harmless error.43  Consequently, making statements that a particular defendant should be held to a higher standard (due to status as lawyer or doctor) is improper. Substituting words in the definition of reasonable doubt with words and phrases such as “strong belief” in defendant’s guilt;44 or substituting “is firmly convicted” for the phrase “has an abiding conviction,” has also been held to be improper.45

7.  Making Personal Comments
About the Defendant:

 Calling a defendant with a high BAC an “alcoholic” is improper because the prosecutor must refrain from denigrating a defendant with intemperate and prejudicial remarks.46  Further, calling defense witnesses such names as “whore” or “bottom feeder” is simply unprofessional.47 Similarly, it should be improper for a prosecutor to suggest that a person with a BAC would be able to perform well on field sobriety tests.  After all, “high tolerance” is really just another way of saying “alcoholic.”

 Commenting on the OWI defendant’s acts as being one of convenience because he was to selfish too pick up the phone and call a cab is improper just as it is improper for a prosecutor to call the defendant a self-centered coward,48 or a bad person,49  or to comment on the dangerousness of defendant’s conduct in driving drunk.50

8.  Suggesting that Defendant Poses a Threat:

 Again, any reference to the dangerousness of drunk driving, driving with a high BAC, or otherwise suggesting that the OWI defendant poses a threat is improper.  This is because it is improper for prosecutor to argue that it would be a “sad day for the city and young people” if the jury returned a verdict of not-guilty,51 or to ask for guilty verdict of guilty for “everything that man did” as such argument encourages the jury to return verdict based on their own fears.52  It is also improper for a prosecutor to argue propensity based on past convictions,53 and this is another reason to disallow a prosecutor from arguing that the defendant passed the field sobriety tests due to tolerance or past exposure to alcohol.

9.  Telling the Jurors to “Do Your Job,”
Fulfill a Duty, Send a Message or
Act as the Conscience of the Community:

 Among the ten listed categories of misconduct, appealing to the community conscious may be the most common in a drunk driving case.  Such arguments are improper.54  When listening to a prosecutor’s closing argument, be aware that it is improper for him or her to tell the jurors to render a verdict they can “live with,”55 to do justice by delivering a guilty verdict56 or to “send a message.”57  It is also improper for the prosecutor to tell the jury “that the American people are relying on you,”58 or to make a suggestion that “if you feel you should acquit him for that it’s your pleasure.  I don’t think you’re doing your job as jurors in finding the facts as opposed to the law.”59  It is also improper to appeal to Patriotism with arguments such as “in this country the jury decides” where such comment was calculated to arouse the national bias.60  Prosecutors should not resort to civic duty arguments that appeal to the fears and prejudices of jury members.61

10.  Abusing Rebuttal Argument or
Referencing the Less Serious Offense
There First:

 In trying drunk driving cases, be especially vigilant when listening to the prosecutor’s rebuttal argument.  Misconduct is most likely to occur during this often unscripted part of the prosecutor’s closing, when he or she is directly responding to arguments you have made.  When the misconduct occurs during rebuttal it is viewed with “special disfavor.”62

 A common tactic of the prosecution in a drunk driving case is to wait for rebuttal to address or discuss the lesser included of operating while visibly impaired.  This is misconduct because raising a new legal theory for the first time in rebuttal is improper.63  As a general rule, Government counsel should not be allowed to develop new arguments on rebuttal, but should be restricted to answering the arguments put forth by defense counsel.64  The closing argument should be in the nature of a rebuttal.  The prosecutor should not conceal or "sandbag" by wholly omitting from argument a salient point or feature of the case and then, if it is not argued by defendant, make a closing argument on that feature.”65


 This list is not exhaustive, and defense counsel is encouraged to research this area of law as it applies to drunk driving cases.  It is then helpful to have a checklist for misconduct in one’s trial book for easy reference.  Once the misconduct in closing argument has been identified, the next step is to decide the appropriate response.  An immediate objection may serve only to highlight the misconduct.  Waiting, however, is equally risky as waiting makes it more difficult for a Judge to attempt to correct the misconduct.

 The final question is whether to request a special jury instruction.  Again, this may simply serve to high-light the objectionable argument.  In order to underline the importance of this issue, counsel may wish to request a mistrial.  After the verdict, an appeal may be in order.  There is no doubt, however, that the first step to curbing prosecutorial misconduct during trial is to understand exactly what is and is not misconduct.

by Patrick T. Barone

 Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefense


1. Ridolfi, supra at pg. 6.
2. Ridolfi, Possley, Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009, (2010).
3. Berger v. United States, 295 U.S. 78, 88 (1935).
4. Id.
5. Id.
6. Ridolfi, supra at pg. 4.
7. People v. Jackson, 189 Cal. App. 4th 1461 (Cal. App. 1st Dist. 2010).
8. Bluel v. State, 153 P.3d 982 (Alaska 2007).
9. Brewer v. United States, 559 A.2d 317, 322 (D.C. 1989) (Fifth Amendment  prohibits prosecutor from commenting on Defendant’s failure to testify).
10. Berhardt v. Bordenkircher, 605 F.2d 275, 279 (C.A.Ky., 1979)
11. Void v. United States, 631 A.2d 374, 385-86 & n. 26 (D.C. 1993) (Prosecutor commits error when commenting on uncontradicted nature of evidence that only defendant could contradict)
12. People v. Callon, 256 Mich. App. 312, 330-331, 662 N.W.2d 501, 514 (2003).
13. People v. Watson, 245 Mich. App. 572, 592; 629 NW2d 411 (2001).
14. Spees v. State, 735 P.2d 571, 576 (Okla. Ct. Crim. App. 1987).
15. People v. Unger, 278 Mich. App. 210, 238, 749 N.W.2d 272, 294 (2008) (All of the above were made prior to defendant’s closing argument).
16. State v.Hart 641 N.E.2d 755 (Ohio Ct. App. 1994).
17. State v. Salitros, 499 N.W.2d 815 (Minn. 1993).
18. State v.Hart 641 N.E.2d 755 (Ohio Ct. App. 1994).
19. Bates v. Bell, 2005 WL659069 (6th Cir 2005).
20. United States v. Richardson, 161 F.3d 728, 735 (D.C. Cir. 1998).
21. Irick v. United States, 565 A.2d 26, 34 (D.C. 1989).
22. West v. United States, 867 A.2d 227 (D.C. 2005).
23. People v. Matuszak, 263 Mich. App. 42, 54-55, 687 N.W.2d 342, 350 - 351 (2004).
24. United States v. Frederick, 78 F.3d 1370, 1380 (9th Cir. 1996).
25. Sok v. Romanowski, 619 F.Supp.2d 334, 359 (W.D.Mich.,2008).
26. Id.
27. Coreas v. United States 565 A.2d 594, 604 (D.C. 1989), and Miller v. United States 444 A.2d 13, 16 (D.C. 1982).
28. United States v. Young, 470 U.S. 1, 18-19 (1985).
29. People v. Matuszak, 263 Mich.App. 42, 54-55, 687 N.W.2d 342, 350 - 351 (2004).
30. Campbell v. U.S., 266 F.Supp.2d 587, 588 (E.D.Mich.,2003).
31. People v. Bahoda, 448 Mich. 261, 282-283, 531 N.W.2d 659, 670 (1995).
32. See, e.g., Jenkins v. State, 563 So. 2d 791, 792 (Fla. Dist. Ct. App. 1990) and Lucas v. State, 335 So. 2d 566, 567 (Fla. Dist.Ct. App. 1976).
33. People v. Unger, 278 Mich. App. 210, 237, 749 N.W.2d 272, 293 - 294 (2008)(citations omitted).
34. ABA Standards for Criminal Justice, Standard 3-5.8(a).
35. Diaz v. United States, 716 A.2d 173, 180 (C.C. 1998).
36. Morris v. United States, 564 A.2d. 746 (D.C. 1989).
37. Gardner v. United States, 698 A.2d 990, 1001 (D.C. 1997).
38. People v. Richardson, 489 Mich. 940, 941, 798 N.W.2d 13, 14 (2011)(denying leave to appeal).
39. Id.
40. Porter v. United States, 826 A.2d 398, 407 (D.C. 2003).
41. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).
42. Golsun v. United States, 592 A.2d 1054, 1058 (D.C. 1991).
43. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).
44. United States v. Merlos, 8 F.3d 48, 50 (D.C. Cir. 1993).
45. Butler v. United States, 646 A.2d 331, 333 (D.C. 1994).
46. People v. Bahoda, 448 Mich. 261, 282-283, 531 N.W.2d 659, 670 (1995).
47. People v. Richardson, 489 Mich. 940, 941, 798 N.W.2d 13, 14 (2011)(denying leave to appeal).
48. Settles v. United States, 615 A.2d 1105, 1113 (D.C. 1992).
49. Doe v. United States, 583 A.2d 670, 676 (D.C. 1990).
50. People v. Bahoda, 448 Mich. 261, 282-283, 531 N.W.2d 659, 670 (1995).
51. Fernandez v. United States, 375 A.2d 484, 486 (D.C. 1977).
52. Hart v. United States, 538 A.2d 1146, 1150 (D.C. 1988).
53. Lee v. United States, 562 A.2d 1202, 1205 (D.C. 1989)

and Ward v. United States, 386 A.2d 1180, 1183 (D.C. 1978).
54. Plummer v. United States, 813 A.2d 182, 191 (D.C. 2002).
55. Chatmon v. United States, 801 A.2d 92, 101 (D.C. 2002).
56. Battle v. United States, 754 A.2d 312, 321 (D.C. 2000).
57. McGriff v. United States, 705 A.2D 282, 288-289 (D.C. 1997).
58. Viereck v. United States, 318 U.S. 236, 247 (1943).
59. United States v. Young, 470 U.S. 1, 5-7 (1985).
60. Coreas v. United States, 565 A.2d 594, 596 (D.C. 1989).
61. People v. Bahoda, 448 Mich. 261, 282-283, 531 N.W.2d 659, 670 (1995).
62. Chatman v. United States, 801 A.2d 92, 101 (D.C. 2002).
63. Porter v. United States, 826 A.2d 398, 409 (D.C. 2003), Coreas, supra, at 600, Hall v. United States, 540 A.2d 442, 448 (D.C. 1988).
64. Moore v. United States, 120 U.S. App. D.C. 173, 175, 344 F.2d 558, 560 (1965).  United States v. Steele, 685 F.2d 793, 802 (3d Cir. N.J. 1982) (ordering new trial upon “government's apparent tactical decision to argue a new interpretation of the evidence in its rebuttal to the defendants' closing arguments.”) and Sheppard v. Rees, 909 F.2d 1234, 1237 (9th Cir. 1990) (granting retrial where new charge alleged in prosecution’s rebuttal).
65. Misch v. C.B. Contracting Co., Mo. App., 394 S.W.2d 98, 102 (1965).