Justice Albin continued for the unanimous court in relevant part: When, in his opening statement, the prosecutor alerts the jury that it will hear testimony that the defendant confessed to the crime and then fails to present evidence to support that anticipatory pledge, the defendant’s fair-trial rights are directly implicated. A prosecutor — even one acting in good faith — cannot in an opening statement dangle an incriminating statement in front of jurors, tell them it implicates a particular defendant, and then expect that they will not use it against that person. Although the Court has not had occasion to squarely address a prosecutor’s opening statement that detailed evidence of a defendant’s guilt that never materialized because the anticipated witness refused to testify, the Appellate Division and courts from other jurisdictions have ordered new trials under such circumstances.
In Greene’s case, as the prosecutor conceded, Greene’s confession to his grandmother was “the single most important piece of evidence that could be brought against him.” That the substance of that confession came from the mouth of the prosecutor in his opening did not diminish its power to make an ineradicable impression in the mind of a juror that no curative instruction likely could erase. The failure of the prosecutor to deliver to the jury the proof he pledged was not a minor variance between the prosecutor’s opening and the case he presented. Given Smith’s refusal to testify, the prosecutor’s opening statement was “clearly capable of producing an unjust result,” see R. 2:10-2, and not even the most exemplary curative instruction could have neutralized the lingering prejudicial effect of the confession conveyed to the jury.
Here, the New Jersey Supreme court is giving a nod to the trial judge that decided the case. The judge is being told that there was nothing more that s/he could have done to neutralize the prosecutor’s error.
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