Defendant's Objections to Comments Made During Closing Arguments
If the defendant suspects that the prosecutor has made an inappropriate comment or remark during closing arguments, the defendant should make an immediate and contemporaneous objection. If the defendant fails to immediately object to the comment or remark, the defendant's later objection to the comment or remark will be deemed waived.
However, there are exceptions to the rule of contemporaneous objection. First, the defendant may still be able to object to the prosecutor's comments at a later time if the prosecutor's comments resulted in plain error. Second, even if the defendant fails to make a contemporaneous objection to the prosecutor's comments, if the comments were so improper that they could not have been corrected at the trial court level, the appellate court may review the comments. Third, if the prosecutor's comments were so flagrant resulting in prejudice to the defendant, an appellate court may also review the comments. Last, if the prosecutor engaged in a persistent pattern of improper conduct such that the defendant did not want to object to the prosecutor's comments as to bring more attention to the prosecutor's conduct, an appellate court may review the comments.
Curative Instructions
A curative instruction is a jury instruction given in an attempt to rectify or correct an improper comment or statement made by a witness or counsel. In the case of closing arguments, a curative instruction may be given if the prosecutor makes a misstatement during closing arguments that may result in a prejudicial effect on the defendant. Curative instructions are used in both federal and state court settings.
The defendant may object after the curative instruction is given. However, if the defendant fails to object after the curative instruction is given, any later objection by the defendant regarding the prosecutor's comments may be deemed waived because the defendant failed to object to the curative instruction.
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