In State v. Land, the appellate division opinion written by Judge Fisher reversed a first degree aggravated manslaughter and possession of a weapon for unlawful purpose convictions when the prosecutor in its opening statement cited facts and testimony of a witness which the prosecutor had reason to believe would not be testifying in the case.
Nonetheless the prosecutor knowing this, recited facts during her opening statement that could only be testified to by the unavailable witness. The appellate division did not buy the State’s argument that the prosecutor was not sure that the witness would not testify. In fact, at the time of trial, although the witness was granted immunity, refused to testify at trial, and none of the facts which the prosecutor claimed would come in through this witness never came in.
The appellate division held that even if the comments during the opening were made in good faith, and coupled with the fact that their was less than overwhelming evidence of guilt, the court was constrained to reverse the conviction .
This case stands for the proposition that criminal defense counsel must listen carefully to prosecutor’s opening statement and make the appropriate objects at trial, and if necessary, on appeal.
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