Allegations of prosecutorial misconduct implicate due process concerns, and the touchstone of the analysis is the “‘fairness of the trial, not the culpability of the prosecutor.
If any misconduct occurred, the court must consider the effect it had on the jury “in the context of the entire trial.”
With regard to each allegation of misconduct, we must determine whether the conduct was improper, and, if so, whether it prejudicially affected substantial rights of the defendant.
Ohio courts have frequently reasoned that a defendant's substantial rights cannot be prejudiced when the remaining evidence, standing alone, is so overwhelming that it constitutes a defendant's guilt, and the outcome of the case would have been the same regardless of evidence admitted erroneously.
Whether statements made by a prosecutor amount to misconduct and whether such statements render a trial fundamentally unfair are mixed questions of law and fact.
A prosecutor is entitled to a certain degree of latitude in closing arguments. Thus, it falls within the sound discretion of the trial court to determine the propriety of these arguments.
A conviction will be reversed only where it is clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would not have found the defendant guilty.
At a very minimum, defense counsel must object, object and object again to any statements that appear to cross the line.