Prosecutor can't say "Don't let them take advantage of her again."

Lawyers are allowed broad latitude in closing arguments and they use it. But some statements cross a line. It is often hard to know where that line is. The Utah Court of Appeals articulated one line that cannot be crossed in sexual assault cases.

David Akok and John Jok were charged with sexually assaulting a woman referred to by the Court of Appeals as N.C. They were tried in a single trial and convicted. During closing argument, the prosecutor made the following statement:

And when you look at the totality of the evidence it is very clear that [Defendant and the codefendant] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don’t let them take advantage of it [the victim] again. Thank you.

The trial attorneys for the defendants moved the court for a mistrial and the trial judge denied their motion. The trial attorneys asked the judge to instruct the jury to disregard the last statement. The judge gave a general curative instruction that closing arguments are not evidence.

In order for a defendant to win reversal based on an improper statement made during closing argument a defendant has to show two things: (1) that the statement "called to the attention of the jury a matter it would not be justified in considering in determining its verdict" and (2) whether it is likely that the statement prejudiced the defendants.

The Court of Appeals held that the prosecutor's statement was improper because it asked the jury to protect the victim, not to apply the law impartially. The court's analysis was somewhat sparse on this point, but it seems to suggest that the jury could have decided that it was somewhat likely that she had been victimized even if the State failed to prove its case beyond a reasonable doubt. If the jury felt it had a duty to protect the victim even if the law did not allow a conviction, then it was improperly influenced by the prosecutor's statement.

The court was troubled that the offending statement occurred during the prosecution's rebuttal argument. As such, the defendants did not have any opportunity to respond to the argument that the jury had the responsibility to protect N.C.

The court also held that the trial court's curative instruction was inadequate because it was too broad, did not single out the offending statement, and merely repeated previous instructions.

In light of this case, prosecutors must be careful to focus on whether the facts prove the case beyond a reasonable doubt and avoid suggesting any other standard or reason for conviction. Defense counsel must be vigilant of improper statements in closing and ask for mistrials and curative instructions when they are made.

State v. Akok, 2015 UT App 89
http://www.utcourts.gov/opinions/appopin/akok150416.pdf
State v. Jok, 2015 UT App 90
http://www.utcourts.gov/opinions/appopin/jok150416.pdf