In the case of Commonwealth v. Alphonse, the Massachusetts Court of Appeals awarded a new trial based on the improper argument of the prosecutor. One of the more common grounds to appeal a criminal conviction is based on improper arguments during closing.

In this case, the prosecutor argued that the defendant had the opportunity to tailor his testimony because he was present during the testimony of all the witnesses and not sequestered like other witnesses. This argument was improper because a defendant is Constitutionally required to be present during all testimony and must be present to be afforded the right to confront and cross examine witnesses.

In this case, the Judge cautioned the prosecutor that the argument was improper and indicated to the jury his displeasure regarding that type of argument. Additionally, the judge did grant a directed verdict regarding one of the counts of the criminal complaint.

The Appeals Court found that the improper argument was so significant that it granted a new trial as the key issue in the case was credibility. Improper closing arguments are one of the more common grounds for a court reversing a criminal conviction.

The position of a prosecutor is not suppose to be that of just an advocate but as representative of the Government and attempting to promote justice. A prosecutor is not permitted to make improper arguments to essentially attempt to win at all costs to influence the decision of the jury. Given the argument, it could be the prosecutor had little else to argue other than comment on the fact that the defendant was present during all of the testimony, which is Constitutionally required. Accordingly, the Appeals Court properly granted the defendant a new trial in what would have been a conviction for domestic assault and battery.

For further reading on Improper Closing Arguments, Attorney Stephen Salzburg wrote an excellent article on this topic for the America Bar Journal.