Case Detail
CitationPeople v. Fisher, 967 N.E.2d 676 (N.Y. 2012)
CrimeSex crimes
StateNY
Pros. First NameUKN
Pros. Last NameUKN
FederalNo
Trial Year2010
BodySupreme court
OpinionThe New York Court of Appeals held that the prosecutor improperly encouraged inferences of guilt based on facts not in evidence and made a materially misleading statement during summation, and the defense counsel's failure to object to any of the prosecutor's improper statements deprived the defendant of the right to effective assistance of counsel. "[T]he prosecutor improperly encouraged inferences of guilt based on facts not in evidence. Without record basis for referring to prior consistent statements by the complainants, no such statements having been admitted in evidence - likely for the very good reason that there had been no claim of recent fabrication [citation omitted] - the prosecutor bolstered her young witnesses' credibility by describing in extended fashion the 'long road' they had traveled in advance of their trial appearances in the course of which 'they said the exact same thing over and over and over again' to the police, social workers, doctors and the grand jury. Continuing, the prosecutor, essentially testifying, improperly, advised the jury that it could view evidence of the complainants' contemporaneous misbehavior at school as proof that the crimes occurred. . . . Hazard of an improperly founded, erroneous conviction was further heightened by the prosecutor's less than frank minimization of the consideration Burse was to receive in exchange for his potentially pivotal testimony as to defendant's jailhouse admissions. While it was literally true that the prosecutor, as she asserted in her summation, was not the Parole Board and did not 'control what happen[ed] to Ray [Burse],' the none too subtle suggestion that the prosecutor's letter to the Board on Burse's behalf was merely a courtesy and conferred no real benefit to be weighed in assessing Burse's credibility was materially misleading; the prosecutor was plainly in a position, if not to control, at least to influence the outcome of Burse's parole violation hearing. . . . Finally, in her peroration, the prosecutor exhorted, '[t]he voice of a child is evidence, the testimony of two children is evidence. The day that the voice of a child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever.' Obviously, it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice."
Determination Year2012
Misconduct TypeTR: Mischaracterizing
TR: Misstating
TR: Vouching
C/S EffectReversal of conviction
Pros. Misc. ReportedUKN
SanctionsUKN
Sanction TypeUKN
Web linkhttp://www.leagle.com/decision/In%20NYCO%2020120403251