Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials

Prosecutorial misconduct in closing argument during the penalty phase of capital trials can be defined as any disparaging or prejudicial statements calculated to influence the jury to consider improper factors in determining life in prison or the death penalty (Gaskill, 1991, p. 13). Improper statements made by the prosecutor during closing argument may jeopardize a defendant's right to a fair trial. While acknowledging such statements as misconduct, courts sometimes permit them on the theory that the presence of improper statements in closing argument would not change the juries' verdicts and therefore are not fundamentally unfair (Chapman v. California, 1967). The present study examined whether improper statements made by the prosecutor in closing argument during the penalty phase of a capital trial would result in more death penalty recommendations. Three hundred and twenty jury-eligible individuals viewed a videotape based on the penalty phase of an actual capital trial (Brooks v. State, 1977). Individuals exposed to improper statements made by the prosecutor in closing argument recommended the death penalty significantly more often than those not exposed to the statements.