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Misstatements of Law, Evidence:
THE ADVOCATE Volume 30, No. 1 January 2008
• It was improper for the prosecutor to misstate the testimony of the psychologist both on
cross-examination and in closing argument. Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984).
• A prosecutor misstated the law on insanity when he told the jury the test was whether the
defendant knew right from wrong. Mattingly v. Commonwealth, 878 S.W.2d 797
(Ky.App.1994).
Personal Opinions, Beliefs, Knowledge:
• A lawyer shall not state a personal opinion as to the justness of a cause, the credibility of a
witness or the guilt or innocence of an accused. SCR 3.130-3.4(e).
• It is always improper for the prosecutor to suggest the defendant is guilty simply because
he was indicted or is being prosecuted. U.S. v. Bess, 593 F.2d 749 (6th Cir.1979).
• It is improper for a prosecutor to tell the jury that he knows of his own personal knowledge
that the persons referred to by the defendant’s alibi witness were “rotten to the core.” Terry
v. Commonwealth, 471 S.W.2d 730 (Ky.1971).
Credibility and Character of Witnesses:
• A lawyer shall not state a personal opinion as to the credibility of a witness, including the
defendant. SCR 3.130-3.4(e).
• The personal opinion of the prosecutor as to the character of a witness is not relevant and
is not proper comment. Moore v. Commonwealth, 634 S.W.2d 426 (Ky.1982).
• It is improper for a prosecutor to comment that he has known and worked with a police
officer for a long time, that the officer is honest and conscientious, and that the officer’s
word is worthy of belief. Armstrong v. Commonwealth, 517 S.W.2d 233 (Ky.1974).
• When the defendant is on trial for possession of a controlled substance, it is improper for a
prosecutor to try to make the defendant appear to be involved in trafficking. Jacobs v.
Commonwealth, 551 S.W.2d 223 (Ky.1977).
• It is error for the prosecutor to comment on the defendant’s spouse’s failure to testify.
Gossett v. Commonwealth, 402 S.W.2d 857 (Ky.1966).
Failure of Accused to Testify:
• The Commonwealth should not comment on the defendant’s failure to testify. Powell v.
Commonwealth, 843 S.W.2d 908 (Ky.App.1992).
• A prosecutor violates a defendant’s right to remain silent when he tells the jury, for example,
that if the defendant, who was a passenger in the car, had really been innocent, he would
have accused the other individual in the car of committing the crime. Churchwell v.
Commonwealth, 843 S.W.2d 336 (Ky.App.1992).
• A prosecutor violates a defendant’s right to remain silent when he tells the jury that the
defendant would have denied ownership of the pouch containing drugs if he were innocent.
Green v. Commonwealth, 815 S.W.2d 398 (Ky.App.1991).
• In a joint trial, counsel for the co-defendant may not comment on the defendant’s failure to
testify. Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky.1977).
Inflammatory, Abusive Language:
• It is error for a prosecutor to make demeaning comments about the defendant and defense
counsel. Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988). The prosecutor must stay
within the record and avoid abuse of the defendant and counsel. Whitaker v. Commonwealth,
183 S.W.2d 18 (Ky.1944).
• A prosecutor must not be permitted to make unfounded and inflammatory attacks on the
opposing advocate. U.S. v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).
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