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Massachusetts Supreme Court Overturns Conviction Based on Prosecutor’s False Statement During Closing Argument

by Dale Chappell

A prosecutor’s false statements in her closing argument in an attempt to corroborate a witness’ testimony was fatal to her case, the Supreme Judicial Court of Massachusetts held, vacating the convictions for rape of a child and indecent assault and battery upon a child.

Angel Alvarez was charged with multiple counts for rape of a child and indecent assault and battery upon a child after a relative accused him of molesting her when she was younger. The relative, who went by the pseudonym “Camille” in the record, testified at trial that after the alleged sexual acts she felt “Gross” and asked her mother if she could take another shower, though she had taken one just an hour earlier. When Camille’s mother testified, however, she said nothing about Camille wanting to take another shower.

The mother’s testimony was important because the prosecutor told the jury during her opening statements that the mother would testify she asked Camille, “Why? You just took one,” when Camille asked her mother for another shower. But the mother never said that during her testimony. Nevertheless, the prosecutor, in her closing argument, told the jury falsely, after defense counsel pointed out the hole in her theory of the case, “Mom told you, ‘she did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.’ That’s corroboration.”

Defense counsel objected, but the judge refused to give a curative instruction to the jury. Instead, the judge told the jury that opening and closing arguments are not evidence. The jury convicted Alvarez, and he appealed.

On appeal, Alvarez raised, among several other issues, that the prosecutor’s false statements in her closing argument swayed the jury to convict him. The Massachusetts Supreme Court agreed, overturned his conviction, and ordered a new trial.

While prosecutors are expected to argue forcefully to obtain a conviction, “closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts.” Commonwealth v. Rutherford, 71 N.E.3d 481 (Mass. 2017). When a prosecutor argues facts in the closing argument that are not based on evidence in the record and that error is preserved with a timely objection, the error requires reversal of the conviction if it cannot be said with assurance that the false statement did not influence the jury. Commonwealth v. Hrabak, 801 N.E.2d 239 (Mass. 2004).

The Massachusetts Supreme Court examines four factors set forth in Commonwealth v. Perez, 825 N.E.2d 1040 (Mass. 2005), in determining whether a false statement made by a prosecutor during closing argument is prejudicial: (1) whether the defendant timely objected, (2) whether the error went to the “heart” of the case,” (3) whether the judge gave instructions to mitigate the error, and (4) whether the error possibly influenced the jury’s decision.

The Court concluded that, based on the facts in this case, each of the four factors favored a determination that the prosecutor’s error was prejudicial. “We cannot be confident that the jury recognized that the prosecutor erred and that the mother never gave this testimony,” the Court said. The Court further found that the prosecutor’s false statements at closing were troublesome because the defense had already closed its case and could not come back to tell the jury of the error.

“If the jury were under the false impression that Camille’s mother had testified that she thought it ‘weird’ that Camille wanted to take a bath, we cannot say with assurance that this could not have influenced their verdict,” the Court concluded.

In his concurrence, Justice Lowy specifically pointed out that “jurors crave corroboration” and that the prosecutor’s false statement at closing was a “powerful statement” corroborating Camille’s testimony that was not based on evidence.

Accordingly, the Court reversed Alvarez’s convictions and remanded the case for a new trial “because we cannot say with assurance that the prosecutor’s improper closing argument could not have influenced the jury to convict.” See: Commonwealth v. Alvarez, 480 Mass. 299 (2018). 

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