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Instructions to the Jury to Disregard Prosecutor’s Improper Comment

Language that infers that the state will not arrest someone unless it is certain of his guilt is prejudicial and destroys the presumption of innocence. Brokenbrough v. State, Del. Supr., 522 A.2d 851, 857-858 (1987).

In Hughes v. State, the Delaware Supreme Court relied on a three-prong test in determining whether improper prosecutorial remarks require a reversal:

(1) the centrality of the issue affected by the alleged error;

(2) the closeness of the case;

(3) the steps taken to mitigate the effects of the error. Del.Supr., 437 A.2d at 571.

In Hughes, the cumulative impact of the errors during the State's rebuttal argument persuaded the Delaware Supreme Court that Hughes' conviction should be reversed, but in the case at bar there was only an isolated error. Id. In Holtzman v. State, it was held that a number of personal remarks by the prosecutor deprived the defendant of a fair trial. Del.Supr., 718 A.2d 528 (1997).

In Brokenbrough v. State, the Delaware Supreme Court upheld the conviction of the defendant despite numerous improper comments by the prosecutor. Del.Supr., 522 A.2d at 863. See also Boatson v. State, Del.Supr., 457 A.2d at 738 (1983): Ross v. State, Del. Supr., 482 A.2d 727 (1984) and Whalen v. State, Del.Supr., 492 A.2d 552 (1985).

The Delaware Supreme Court has held that when prejudicial error is committed, it will usually be cured by the trial judge's instructions to the jury to disregard the prosecutor's remarks. Diaz v. State, Del.Supr., 508 A.2d 861 (1986); Kornbluth v. State, Del.Supr., 580 A.2d 555 (1990).