A Utah appeals court recently ruled that a prosecutor’s characterization of a defense counsel’s argument as a “red herring” did not amount to prosecutorial misconduct.
Prosecutorial misconduct during closing arguments occurs when a prosecutor’s statements during a closing statement violate a defendant’s rights by, for example, calling the jurors’ attention to matters which they are not allowed to consider during deliberations.
In order to reverse a conviction based on prosecutorial misconduct, the prosecutor’s statements must actually prejudice a defendant’s case.
In the case of Brian Allen Fouse, an appeals court found that the prosecutor’s characterization of his argument as a “red herring” did not prejudice his defense or otherwise violate his rights. Fouse was accused of stalking his ex-wife and violating a protective order.
During closing statements, the prosecutor called Fouse’s defense theory a “red herring” solely intended to distract them. Fouse argued that he was not guilty of violating a protective order because he sent letters addressed to his ex-wife’s sister, and that the sister is the person who handed the letters to his ex-wife.
An appeals court found that the defense theory concerning the sister was indeed a distraction from the ultimate issue of Fouse’s guilt.
“The issue at trial was Defendant’s guilt, not that of Victim’s sister, and given that defense counsel claimed that the lack of charges against Victim’s sister was relevant to the case and definitively proved Defendant’s innocence, it was entirely permissible for the prosecutor to criticize the argument for the nonsense that it was,” the judges wrote. “It was permissible to call the “theory” a distraction and endeavor to redirect the jury to the issue of whether Defendant’s guilt had been proven by the evidence presented during trial.”
The Salt Lake City criminal defense team at Greg Smith & Associates handles criminal cases throughout Utah. If you or a loved one is under investigation or has been charged with a crime, call us at 801-651-1512 or contact us online.