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2017 Investigative Summary 4

Investigation of Alleged Improper Cross-Examination; Improper Closing Argument 

A DOJ component notified OPR of a court of appeals decision reversing the defendant’s conviction because of the DOJ attorney’s prosecutorial misconduct during her cross-examination of the defendant, and her closing argument. The defendant elected to testify on his own behalf during the trial and the trial court permitted him to invoke his Fifth Amendment right against self-incrimination with respect to certain subject matters that the DOJ attorney sought to cross-examine him about.

However, the DOJ attorney continued to ask multiple questions during her cross-examination that highlighted that the defendant was unwilling to answer questions regarding certain subject matters. Thereafter, during her closing argument, the DOJ attorney suggested to the jury that they should not believe the defendant because he had relied on the Fifth Amendment.

OPR initiated an inquiry, which it later converted to an investigation. In its report of investigation, OPR concluded that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her obligation to refrain from commenting on the defendant’s valid invocation of this Fifth Amendment privilege and by repeatedly arguing during her closing argument that the defendant’s invocation was evidence that his testimony was not credible. OPR referred the matter to the PMRU, which adopted OPR’s findings, and issued a letter of reprimand. 

Updated July 13, 2021