Preston v. State ( 1971 )

BRETT, Judge

(Special concurrence):

I concur. The time has arrived to require the prosecutor to more closely confine his closing remarks to the facts and evidence presented at the trial. While this Court has liberally construed the rules governing closing arguments, some prosecutors have interpreted that application to constitute a license to inject their personal views into those arguments. The result is that conscientious trial judges are required to weigh the merits of a motion for mistrial against the expense involved in granting a new trial, while at the same time believing the evidence may be sufficient to sustain the conviction. This injected and improper requirement becomes unnecessary if the prosecutor conducts himself as he knows he should.

Also, when this Court considers the matter, the cost factor is of no consequence compared to the accused’s constitutional guarantee to due process of law. One solution to prevent such deliberate, improper conduct on the part of the prosecutor, in this respect, may be the assessment of the costs for the mistrial to that prosecutor. While “due process” does not guarantee a perfect trial, it does guarantee a fair trial.