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THE ADVOCATE Volume 30, No.1 January 2008
• It is improper, for example, for a prosecutor to refer to a defendant as a “black dog of a night,”
“monster,” “coyote that roamed the road at night hunting women to use his knife on,” and
“wolf.” Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988).
• A prosecutor may not encourage a verdict based on passion or prejudice, or for reasons not
reasonably inferred from the evidence. Bush v. Commonwealth, 839 S.W.2d 550 (Ky.1992). See
also Clark v. Commonwealth, 833 S.W.2d 793 (Ky.1991), Dean v. Commonwealth, 777 S.W.2d
900 (Ky.1989), Morris v. Commonwealth, 766 S.W.2d 58 (Ky.1989), Ruppee v. Commonwealth,
754 S.W.2d 852 (Ky.1988), and Estes v. Commonwealth, 744 S.W.2d 421 (Ky.1988).
Local Prejudice:
• Reversal was required when the prosecutor argued in closing argument, “If you want a Clark
County lawyer to come over here to defend a Clark County thief who breaks into and steals
from an Estill County place of business, then that is your business, and if you want that then
you will find this thief here not guilty.” Taulbee v. Commonwealth, 438 S.W.2d 777 (Ky.1969).
Golden Rule:
• It is error for a prosecutor to urge jurors to put themselves or members of their families in the
shoes of the victim. Lycans v. Commonwealth, 562 S.W.2d 303 (Ky.1978).
Send a Message:
• In both Commonwealth v. Mitchell, 165 S.W.3d 129 (Ky.2005), and Brewer v. Commonwealth,
206 S.W.3d 343 (Ky.2006), the Kentucky Supreme Court clearly indicated it had lost patience
with this form of argument but could not reverse the cases because defense counsel did not
object and the argument did not rise to palpable error. However, in McMahon v. Commonwealth,
2007 WL 4208652 (Ky.App.2007), decided Nov. 30, 2007, to be published, not yet final, the
court reversed the defendant’s conviction for this kind of argument when defense did object
and when there was no need for this type of argument because defense counsel had conceded
there was sufficient evidence to convict.
Jury Responsibilities:
• A prosecutor may not minimize a jury’s responsibility for its verdict or mislead the jury as to its
responsibility. Clark v. Commonwealth, 833 S.W.2d 793 (Ky.1992).
• A prosecutor may not argue to jurors that a not guilty verdict (or a guilty verdict on a lesserincluded
offense) is a violation of their oath. Goff v. Commonwealth, 44 S.W.2d 306 (Ky.1931),
Barnes v. Commonwealth, 91 S.W.3d 564 (Ky.2002).
Effect of Verdict:
• It is prosecutorial misconduct for a prosecutor to repeatedly refer the jury to the danger to the
community if it turned the defendant loose. Sanborn v. Commonwealth, 754 S.W.2d 534
(Ky.1988).
• Neither the prosecutor, defense counsel, nor the court should relate to the jury the future
consequences of a particular verdict anytime during a criminal trial. Woodward v. Commonwealth,
984 S.W.2d 477 (Ky.1998).
• It is error for a prosecutor to urge the jury to convict in order to protect community values,
preserve civil order, or deter future lawbreaking. U.S. v. Solivan, 937 F.2d 1146 (6th Cir.1991). It
is error for a prosecutor to tell the jury that if they do not convict, they have no right to
complain when they become victims of crime. Dennis v. Commonwealth, 526 S.W.2d 8 (Ky.1975).
• It is error for a prosecutor to appeal to the community’s conscience in the context of the war on
drugs and to suggest that drug problems in the community would continue if the jury did not
convict the defendant. U.S. v. Solivan, 937 F.2d 1146 (6th Cir. 1991).
• The Commonwealth is not at liberty to place upon the jury the burden of doing what is necessary
to protect the community. King v. Commonwealth, 70 S.W.2d 664 (Ky.1934).
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