Justice Solomon continued in relevant part: Courts reverse a conviction only if the prosecutorial misconduct was so egregious as to deprive defendant of a fair trial. Factors to be considered in making that decision include: “(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.” State v. Frost, 158 N.J. 76, 83 (1999).
Here, the State admits it erred in using the PowerPoint image during summation but asserts the error was not clearly capable of producing an unjust result. The Court reviews in detail four cases in which it considered whether prosecutorial errors deprived the defendant of their right to a fair trial. In State v. Feaster, 156 N.J. 1 (1998); State v. Jackson, 211 N.J. 394 (2012); and State v. McNeil-Thomas, 238 N.J. 256 (2019), the Court found the prosecutors’ errors to be harmless after noting such considerations as the evidence adduced, lack of objection, use of a curative instruction, and whether the challenged statements were fair comment on the evidence.
In Frost, the Court found the prosecutor’s summation constituted prejudicial prosecutorial misconduct: there, the prosecutor made a clear misstatement of the law, improperly vouched for a witness’s credibility, and disparaged defense counsel; despite defense counsel’s objections, moreover, the court did not strike any of the comments or provide a limiting instruction. Those cases make clear that, in closing, prosecutors are obliged to confine their comments to the evidence admitted and reasonable inferences drawn therefrom. Failing to do so may imply that facts or circumstances exist beyond what has been presented to the jury and encroach upon a defendant’s right to a fair trial.
That implication likely played a role here in bringing about an unjust conviction. It is common knowledge that Jack Nicholson’s character in the shing was holding a hidden weapon and that his victims were aware that the weapon existed. There was no such weapon evidence in this case, but the prosecutor intimated that it existed.