D.C. Circuit: Prosecutor‘s Improper (“sympathetic overtones”) Opening/ Closing Statements Deemed Harmless Error. @Legal_Times. For full article, see Prosecutors’ Comments Not Enough For New Trial; for full opinion, see U.S. v. MOORE – Argued March 24, 2011.
The D.C. Circuit found Prosecutor’s opening and closing remarks problematic and went beyond merely providing an ‘objective summary of the evidence.’” (Proper: listing the 31 murder victims by names and dates on which they were killed. Improper: discussing the victims’ first days of school, favorite songs, families, mothers, fathers, coffins, and funerals).
The appeals court said prosecutors cannot take “artistic license with the trial evidence, construct a more dramatic version of the events, provide conjecture about a victim’s state of mind, and then defend against a prosecutorial misconduct claim by maintaining the statements are ‘factbased.’”