Comment Flashcards
Explain how these statements commented on silence:
First, the prosecutor highlighted the absence of a specific kind of evidence only Mr. Luna could provide, namely, “clarification” of ambiguous text and voice messages from “the speaker” or “the writer.” Reinforcing this impression, the prosecutor contrasted the absence of evidence here with the “benefits of in-court interpretation,” during which witnesses talked formally and clarified their meaning.
In this respect, the prosecutor’s comments were similar to the comments in Beardslee, which were improper because they “contrast[ed] the actual trial with a hypothetical one in which the defendant testified.” Beardslee, 358 F.3d at 586. Likewise, here, the prosecutor’s comments contrasted the actual trial evidence with hypothetical trial that involved “in-court interpretation,” where the interpreters could simply ask for clarification.
Give me your best analogous cases.
The prosecutor’s comments were similar to the comments in, for example, Preston and Beardslee.
In Pretson, pointing out the absence of any testimony contradicting the key witness’s testimony was implied Griffin error, because “the jury would have immediately inferred that they did not hear testimony from [the defendant], the only witness who could have directly contradicted [the complainant’s] allegations.” Preston, 873 F.3d at 843 (emphasis original). Likewise, here, the jury would have immediately inferred that they did not hear testimony from Mr. Luna, the only “writer” or “speaker” who could “provide clarification” for his comments.
In Beardslee, pointing out that the jury could not assess the defendant’s demeanor and remorse was implied Griffin error, because that comment “contrast[ed] the actual trial with a hypothetical one in which the defendant testified.” Beardslee, 358 F.3d at 586. Likewise, here, the prosecutor’s comments contrasted the actual trial evidence with hypothetical trial that involved “in-court interpretation,” where the interpreters could simply ask for clarification.
Doesn’t Mares tell us that prosecutors don’t comment on silence if they use generic pronouns, like “they” and “theirs”?:
No, your honor. In Mares, the prosecutor told the jury that “defense counsel” would make certain arguments for acquittal and then urged the jury to reject “their” arguments. This Court determined that the antecedent of “they” and “their” was “defense counsel,” not “the defendant,” so there was no Griffin error. Here, in contrast, Mr. Luna was an antecedent of “the writer” or “the speaker.”
But unlike in almost every other implied Griffin case, the prosecutor didn’t comment on Mr. Luna’s failure to prove or disprove a particular fact, right?:
I disagree, your honor. The comments giving rise to indirect Griffin errors are diverse. In Stenhal, the prosecutor posed rhetorical questions to the defendant suggesting that his theory of defense was implausible. In Preston, the prosecutor said that there was “no testimony in this case that contradicts [the government witness’s] testimony.” In Beardslee, the prosecutor told the jury that they had not been able to evaluate the defendant’s “demeanor and sincerity.” The common denominator in these cases is that each comment drew attention to the absence of specific evidence that only the defendant’s testimony could provide. So too here. The prosecutor commented Ms. Monroy did not “have the benefit of asking” “the speaker” or “the writer” “what he or she meant or seeking clarification from them.” 3-ER-312–15. Because Mr. Luna was “the speaker” or “the writer” for his messages, only he could provide that clarification for his messages.
If the prosecutor’s meaning was so obvious, why did defense counsel wait to object until several pages in?:
As an initial matter, your honor, this Court hasn’t previously found implied Griffin error even when defense counsel wasn’t so quick on the draw. Lincoln v. Sunn is a good example. But if there’s a lesson to be drawn from the timing, it’s that the prosecutor’s point became more and more obvious over time, as the prosecutor returned again and again to the benefits of in-court testimony. And that’s what skilled advocates are trained to do: to develop themes during witness examination through framing and repetition. And that’s what happened here. The prosecutor framed his questions in terms of the benefits of in-court interpretation, and returned again and again to contrast those benefits with the kind of interpretation here.
But the prosecutor’s questions were generic and did not refer to Mr. Luna by name. The prosecutor even said he was going to ask some questions “generally” about interpreting
Yes, your honor, but the whole idea behind an implied Griffin error is that a prosecutor can indirectly draw attention to a defendant’s silence. And here, the jury knew from opening statements and previous witness testimony that when the prosecutor began talking about voice and audio translations, and referring to the speaker and the writer, they were talking about messages on Mr. Luna’s phone.
Specifically, in opening, the government said that “most of the evidence we’re going to cover will be from” Mr. Luna’s phone; he told the jury that that evidence would consist of text and audio messages; he quoted the messages and made clear that some were from Mr. Luna; and he told the jury that they would “hear from an interpreter” who translated the messages. Then, they moved hundreds of Spanish-language text and audio messages into evidence through Agent Eric Sajo. So there was no question what the prosecutor was talking about.
In this respect, this case is like Preston, where the prosecutor stated that there was “no testimony in this case that contradicts [the government witness’s] testimony.” Though the prosecutor didn’t refer to Mr. Preston by name, this court reasons that “the jury would have immediately inferred that they did not hear testimony from [the defendant], the only witness who could have directly contradicted [the complainant’s] allegations.” The comment was therefore implied Griffin error. So too here. The jury would have immediately inferred that the government was making points about the text and audio messages that they had already heard so much about.
Can a prosecutor comment on a defendant’s silence when a jury doesn’t yet know whether the defendant is going to testify or not?
I think the answer to this has to be yes, because priming a jury to expect that an innocent defendant would testify works the same harm that Griffin sought to avoid. The prosecutor here was signalling to the jury that it would clear a lot of things up for Mr. Luna to just testify and tell us what he meant in those messages. When that testimony was not forthcoming, a jury might speculate that that’s because clarifying testimony would only reinforce Mr. Luna’s guilt.
But the prosecutor was just trying to give some general background about interpreting.
That’s how the prosecutor’s comments were framed, your honor, but the whole idea behind an implied Griffin error is that a prosecutor can indirectly draw attention to a defendant’s silence. And here, the jury knew both from opening statements and from previous witness testimony that when the prosecutor began talking about voice and audio translations, and referring to the speaker and the writer, his comments pertained to the messages on Mr. Luna’s phone.
Specifically, in opening, the government said that “most of the evidence we’re going to cover will be from” Mr. Luna’s phone; he told the jury that that evidence would consist of text and audio messages; he quoted the messages and made clear that some were from Mr. Luna; and he told the jury that they would “hear from an interpreter” who translated the messages. Then, they moved hundreds of Spanish-language text and audio messages into evidence through Agent Eric Sajo. So there was no question what the prosecutor was talking about.
In this respect, this case is like Preston, where the prosecutor stated that there was “no testimony in this case that contradicts [the government witness’s] testimony.” Though the prosecutor didn’t refer to Mr. Preston by name, this court reasons that “the jury would have immediately inferred that they did not hear testimony from [the defendant], the only witness who could have directly contradicted [the complainant’s] allegations.” The comment was therefore implied Griffin error. So too here. The jury would have immediately inferred that the government was making points about the text and audio messages that they had already heard so much about.
This is all just too clever by half. It’s so subtle.
Not in the context of the trial up to that point, your honor. It is crucial to remember that by that point in the trial, the jury knew that Mr. Luna’s text and voice messages would be the government’s primary proof of knowledge, and that Mr. Luna’s defense would turn on showing that they were ambiguous enough to support reasonable doubt. The parties had powerfully staked out those positions in opening and prior witness examination. And it’s in that context that the prosecutor starts asking Ms. Monroy about the clarifying benefits to in-court interpretation, and how much harder it is to interpret text and voice messages, when you can’t clarify.
But there’s an equally plausible explanation for why the prosecutor was eliciting this information. He was just trying to explain how two interpreters could come to different conclusions about the same messages and build up Ms. Monroy’s credibility by having her recognize a potential difficulty in translating the messages:
Perhaps that was the prosecutor’s subjective motivation, your honor, but the inquiry here is objective, namely, whether the jury “naturally and necessarily” understood the comments. And here, they did, for a couple of reasons.
First, the prosecutor highlighted the absence of a specific kind of evidence only Mr. Luna could provide, namely, “clarification” of ambiguous text and voice messages from “the speaker” or “the writer.” Reinforcing this impression, the prosecutor contrasted the absence of evidence here with the “benefits of in-court interpretation,” during which witnesses talked formally and clarified their meaning. In these two respects, the prosecutor’s comments were similar to the comments in, for example, Preston and Beardslee.
But why wouldn’t the jury have objectively understood the comments as explaining interpreters could come to different conclusions about the same messages and building up Ms. Monroy’s credibility by having her recognize a potential difficulty in translating the messages?:
For a couple of reasons. Most importantly, the entire exchange was framed around the benefits of in-court interpretation, and the explanations the government has proposed here just don’t account for that repeated emphasis on in-court testimony. Compounding the problem, the government never drew the connection between any of its questions and Ms. Monroy’s credibility. The prosecutor’s questions highlighted reasons why Ms. Monroy’s translations might not be accurate, and the prosecutor never drew the connection between those difficulties and disagreements among interpreters.
Wasn’t the prosecutor just preemptively defending against your expert’s attempt to smear the government interpreter’s integrity?:
Even if that was the prosecutor’s subjective intent, the question under Griffin is whether the questions objectively drew the jurors’ attention to the defendant’s failure to testify. And here, they did.
First, the prosecutor highlighted the absence of a specific kind of evidence only Mr. Luna could provide, namely, “clarification” of ambiguous text and voice messages from “the speaker” or “the writer.” Second, reinforcing the point, the prosecutor drew a contrast with the “benefits to in-court interpretation,” during which the interpreters could ask the speaker “what he or she meant.”
In this respect, the prosecutor’s comments were similar to the comments in Beardslee, which were improper because they “contrast[ed] the actual trial with a hypothetical one in which the defendant testified.” Beardslee, 358 F.3d at 586. Likewise, here, the prosecutor’s comments contrasted the actual trial evidence with hypothetical trial that involved “in-court interpretation,” where the interpreters could simply ask for clarification.
But we aren’t asking whether the jury could have understood the comment this way. We’re asking whether it necessarily would have.
Correct, your honor. But here, in context, it would have been unmistakable that the prosecutor was referring to Mr. Luna’s messages. And that context came from both opening statement and witness examination.
Five features of the government’s questions necessarily alluded to Mr. Luna’s failure to testify. First, the comments came after an opening statement and witness examinations that both made unmistakably clear that disputed text and voice messages would be at the center of case. Second, the prosecutor’s statements referenced “the speaker” and “the writer” of text and audio messages, which—for a large portion of the messages—was Mr. Luna. Third, the prosecutor repeatedly referenced “in-court” interpretation in explaining what kind of speech could be more reliably translated, thereby raising the idea of witness testimony. Fourth, the government repeatedly made the point that in-court testimony had the “benefit” of letting the speaker clarify his meaning with the interpreter. And fifth, the jury would have struggled to take an alternative meaning from the prosecutor’s questions, as they seemed to point out reasons why Ms. Monroy’s translations might not have accurately captured the messages’ meaning.
But Ms. Monroy didn’t say that Mr. Luna failed to adduce evidence or answer a question, as in other cases:
I disagree with the premise, your honor, because the case law shows that the comments giving rise to indirect Griffin errors are actually diverse. In Stenhal, the prosecutor posed rhetorical questions to the defendant suggesting that his theory of defense was implausible. In Preston, the prosecutor said that there was “no testimony in this case that contradicts [the government witness’s] testimony.” In Beardslee, the prosecutor told the jury that they had not been able to evaluate the defendant’s “demeanor and sincerity.” The common denominator in these cases is that each comment drew attention to the absence of specific evidence that only the defendant’s testimony could provide. So too here. The prosecutor commented Ms. Monroy did not “have the benefit of asking” “the speaker” or “the writer” “what he or she meant or seeking clarification from them.” 3-ER-312–15. Because Mr. Luna was “the speaker” or “the writer” for his messages, only he could provide that clarification for his messages.
But your client wasn’t the only person who could rebut Ms. Monroy’s testimony about the difficulties of translating text and voice messages, right? In fact, your client couldn’t provide that kind of rebuttal because he was not a translator.:
Yes, your honor, but that doesn’t capture the problem with the prosecutor’s comment. The problem is not that Mr. Luna was unable to rebut the prosecutor’s literal statements. Those statements were, in fact, indisputably true: You can seek clarification from a testifying witness but not from a text or voice message. The problem was that the prosecutor’s statement’s underscored that the jury would not receive clarifying testimony from the speaker or the writer. Only Mr. Luna was the speaker or the writer for his messages, and so only he could provide that testimony.
An analogy to Preston is helpful here. In Preston, the prosecutor said that there was no testimony contradicting the government witness’s testimony. Of course, Mr. Preston could have rebutted that statement on its literal terms. If there actually was testimony contradicting the government witness’s testimony, his counsel could have pointed that out. But that comment was still improper, because it drew attention to the absence of evidence that only Mr. Preston’s testimony could provide, namely, testimony contradicting the government witness’s testimony.
