I’ve Made a Huge Mistake
Upon the death of his mother, Martin Frazier traveled
to Portland, Oregon, and stayed at the home of an aunt where he shared a room
with her son Jerry Rawls. On September 22, 1964, police discovered a body, and
the cause of death determined to be manual strangulation. Frazier was
arrested at approximately 4:00 p.m. on September 24, 1964, and Rawls was
arrested later that same day.
The officers who arrested Rawls were admitted into the
home by the aunt and Rawls to search for Rawls’ clothing. Although a search
warrant was never obtained, a police officer testified, “I asked Jerry Rawls if we could have his clothing and he said ‘yes.’ I
asked him where it was and he said it was in a blue bag in his bedroom.” The
police took into their possession a blue bag and its contents, which contained Rawls’
clothing and other clothing and property belonging to Frazier which had stains that
appeared to be blood. Rawls made a written confession and pleaded guilty.
The Hits
Just Keep on Coming
In Frazier’s trial (State
v. Frazier), the district attorney made an opening statement in which he
told the jury that he expected Rawls to testify and stated what he anticipated
would be Rawls’ testimony. The D.A. did not mention that Rawls had confessed.
After the opening statement, Frazier moved for a mistrial and the trial court
denied his motion. When the prosecution called Rawls to the stand, he invoked
his Fifth Amendment privilege against self-incrimination and refused to answer
any questions. Rawls was dismissed as a witness. Frazier moved again for a
mistrial and was again denied. No other reference to Rawls or his confession
was brought up during the remainder of the trial. Frazier was convicted of
second-degree murder. The district court regarded the prosecutor’s opening
statements as an admission of Rawls’ prior statements into evidence with no
opportunity for Frazier to cross-examine Rawls.
On appeal, the Ninth
Circuit Court determined that “A
prosecutor’s use of opening statements to outline the anticipated testimony of
a witness who never testifies does not amount to prosecutorial misconduct that
requires the declaration of a mistrial when the prosecutor’s statements are not
made in bad faith and do not result in unfair prejudice to the defendant… Although the trial judge did not specifically
instruct the jury to disregard the prosecution’s references to Rawls’
anticipated testimony, the judge did give a general instruction that opening
statements are not evidence.”
I Don't Understand the Question (and I Won't Respond To It)
-Do you believe a prosecutor’s
use of opening statements to outline the anticipated testimony of a witness who
never testifies amounts to prosecutorial misconduct?
-Should this situation
require the declaration of a mistrial only
if the prosecutor’s statements are made in bad faith and result in unfair
prejudice to the defendant?
-Is the defendant’s best
recourse to point out to the jury the prosecutor’s broken promise as an
indication of the weakness of his case?
My initial reaction was that yes, the prosecutor made an error. I wanted to compare this to Griffin v. California, 380 U.S. 609 (1965)(stating that Prosecutors are not allowed to comment on a defendant's silence during trial), but the link between these two is not apparent.
ReplyDeleteI'm also curious on the impact that Rawls lack of testimony had on his plea deal. I would expect that part of his plea would include a requirement to testify against Frazier, and that failure to cooperate would have negative consequences. Thus, I think that it was within the prosecutor's prerogative to outline expert testimony in order to give an overview of the case. It does not sound like the prosecutor was testifying for Rawls and the anticipation was that Rawls would testify at trial.
I do not think the prosecutor was in error during the opening statement because as it states in the Oregon Supreme Court opinion, “The state could reasonably expect him to testify in line with his previous statements.” To hold the paper up and state that Rawls would testify would be a correct assumption.
ReplyDeleteThe difficulty was what followed when Rawls invoked the 5th amendment. “Prosecutors and defense attorneys generally have considerable latitude in what they’re allowed to say in opening statement. That said, they’re not allowed to “argue” (argument is saved for closing), nor are they allow to refer to inadmissible evidence or facts they don’t intend to or can’t prove.”
I think the earlier evidence introduced by the DA should allow a mistrial to be declared. The DA can no longer prove that Rawls would testify to these facts, so the opening statement prejudiced the jury with inadmissible evidence.
I'm inclined to say that the prosecutor did nothing wrong. Witnesses are not always predictable and they may end up not providing any answers. However, I do think the prosecutor could have an influence on the jury on what the witness "might have said" if he would have answered the questions.
ReplyDeleteI would say gauging the unpredictability of the witness in this case, he was not necessarily committing misconduct. I feel like misconduct would be more reckless.
Jordan, I agree. Seems like bad lawyering to me to base the entirety of the case on what they believe the witness "might" say. As we learned in Davies moot trial, the defense and prosecution need to be prepared with an argument in every type of situation that may arise.
DeleteLauren's point is right-on. Although we can assume that the prosecutor acted in good faith, it's worth considering what the unreliability of the opposition's witnesses might do to the integrity of an opening statement. It does not rise to the level of professional misconduct, but it might suggest a kind of naivete at odds with professionalism itself.
DeleteLauren and Erin, I agree. I think part of the problem was that back in the 1960s, there was not as much opportunity to introduce other forms of evidence so the need for and weight of testimony was much greater. I doubt that presenting the case like this now would be very successful.
DeleteUnder ORS 133.703 identity of informants, evidence shall be suppressed by the defendant unless, it was seized by authority of a search warrant and the informant testifies in person before the issuing authority. Also this is protected by Article I, Section 9 of the Oregon Constitution, protects citizens from unreasonable searches and seizures. There is no exception to the rules regarding search warrants under the Oregon’s laws.
ReplyDeleteIn my opinion the prosecutor was in error. First, the blue bag shouldn’t have been entered as evidence during trial. The Supreme Court of Oregon said that what is reasonable depends upon the facts and circumstances of each case, that is not an enough statement to stablish a probable cause for search. The interpretation of the Oregon Constitution was very unconstitutional.
Under ORS 135.335 pleading by defendant, with the consent of the court and the state, a defendant may enter a conditional plea of guilty or not contest. This rule clearly explains it should be done under the consent of the court. But also based on admissibility of defendants, pleading guilty could be admissible in a later court proceeding, even if the victim then refuses to testify, because the prosecutor would have been afforded an opportunity to cross examine the defendant the statement at issue.
In an opening statement you could actually have the opportunity to tell what evidence expected you will show not limited to (anticipated testimony). It will be an error to state the details of the testimony like “a witness will testify that the defendant is guilty”.
I do no think the prosecutor was at fault. He sincerely thought the witness was going to testify. His intent was to inform, not mislead. Witnesses can be precarious, especially when being exposed to uncertain circumstances, such as a court room.
ReplyDeleteI agree Raelene. It would also definitely depend on what the prosecutor said. If he was testifying for the witness, that would be problematic. If he gave an overview of why the witness was testifying, that would seem to indicate that the prosecutor was not trying to testify for the witness or incorporate evidence into his opening statement.
DeleteI don't necessarily believe that the prosecutor’s use of opening statements to outline the anticipated testimony of Rawls, who never testified, amounts to prosecutorial misconduct but believe it should have been addressed elsewhere. The prosecutor should have been aware that eyewitness testimony is one of the most unreliable forms of evidence and that the witness had the option of evoking his Fifth Amendment rights during trial. So, although it would have been an interesting opening statement, it should have been addressed elsewhere. Todd brings up an interesting point above, that the opening statement is not meant to "argue" but to tell jurors something about the case they will be hearing later on.
ReplyDeleteI'm curious as to why the witness decided not to testify, and what the consequences were.
DeleteI don't think the behavior amounts to prosecutorial misconduct. The job of the prosecutor is to paint a picture for the jury, and from what i've read, he thought that Rawls would be testifying.
ReplyDelete...and if the court felt that the error did not affect the trial then there would be no reason to do anything about it.
DeleteFirst of all, you always need Bob Loblaw. Second, I agree that what the D.A. did was "bad lawyering" and not enough to declare a mistrial. While the D.A. planned to call him to the stand, witnesses are unpredictable. Rawls did not have to testify.
ReplyDeleteYou win for the best headers! We don't talk nonsense to Bob Loblaw!
I agree with everyone who does not believe mentioning the testimony of Rawls constitutes prosecutorial misconduct. In an opening argument, a lawyer is permitted to inform the jury of evidence. If the prosecutor had evidence to support the information she was disclosing and she presented information that she believed her own witness would testify to, how could this be wrong? Further, it seems information disclosed in an opening statement could only be considered misconduct if it was known to be erroneous or inadmissible. In this case, Rawls was the State's witness. While we hope lawyers do their best to know what their own witnesses will say on the stand, we all know, like Tricia said, that they are unpredictable. The fact that the prosecutor had evidence that was admissible, Rawls was a State witness, and he had pleaded guilty (so why would she consider that he would assert his Fifth Amendment rights?) did not place the prosecutor in a negligent position. She did not provide inadmissible or erroneous information during her opening statement.
ReplyDeleteI also agree with Tricia and Leila that we all need a little more Bob Loblaw. In fact, I think we should consider re-naming this law blog. And if only Gene Parmesan really existed...
Wait! Maybe I'VE made a huge mistake! As I study for our next quizzie, I see that Professor Dryer told us that a lawyer shouldn't promise the evidence will prove a specific fact if it does not. Did the prosecutor know the witness would assert his 5th Amendment right? Cool. I'm arguing with myself on here.
DeleteI also agree with the 9th Circuit’s determination that including anticipated testimony of a witness in the opening statement should not amount to misconduct. As others have mentioned, witnesses are unpredictable and it’s possible the prosecutor had no idea Rawls would invoke his 5th amendment rights. There are other reasons a mistrial would be declared, but in regard to prosecutorial conduct, had the prosecutor known Rawls had no intention of testifying, I do think this would require the declaration of a mistrial as the prosecutor elected to include the statements knowing the jury would not hear them from the witness. If I were the defendant I would certainly get Bob Loblaw, and point the jury to the prosecutor’s broken promise.
ReplyDeleteETHICAL CONSIDERATIONS IN OPENING STATEMENTS
ReplyDeleteOpening statement is not specifically mentioned in the Model Rules of Professional Conduct, but there are a number of provisions that lawyers must bear in mind when preparing our opening statements:
Rule 3.4(e)(1): A lawyer may not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”
Rule 3.4(e)(2): A lawyer shall not “assert personal knowledge of facts in issue.”
Rule 3.4(e)(3): A lawyer may not “state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused.”
Rule 3.4 also prohibits a lawyer from “knowingly disobey[ing] an obligation under the rules of a tribunal.”
and then there is …
Like other portions of a trial, a mistrial or reversal on appeal resulting from an error occurring during an opening argument will not be declared if the error does not affect the framework within the trial and therefore undermine its fairness or validity. The Harmless Error Doctrine thus prevents an unnecessary new trial when the error alleged would not have affected the outcome of the trial.
So … apparently the court felt the error would not have affected the outcome of the trial. I know we don’t have all the details, but I’m inclined to say that knowing the evidence they made the correct call.