a prosecutor engages in misconduct when the prosecutor injects personal knowledge into the proceedings through testimonial questioning
How later courts described this case
- a prosecutor engages in misconduct when the prosecutor injects personal knowledge into the proceedings through testimonial questioning
Written by the judges who cited it.
The opinion
N. J. Kaufman, J.
(dissenting). I dissent. I cannot countenance the deliberate injection by the prosecutor of so obviously prejudicial material, and I feel that this Court cannot condone such actions by deeming them harmless error. See e.g. People v *36 Dunn, 46 Mich App 226, 231 ; 208 NW2d 239 (1973). The error is not, under the first test of People v Robinson, 386 Mich 551 ; 194 NW2d 709 (1972), harmless. I find the error to be "so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless”. Id. at 563 . I cannot see how the fact that defendant objected to the prosecutor’s initial, nonresponsive "explanation” of "E. O. A. N. O. 11-24-73” by claiming that the question had been "asked and answered”, rather than by citing its prejudicial effect, could diminish the offensiveness of the question. The prosecutor’s remarks were objectionable for numerous reasons. Counsel for defendant need only have given one, and he did so.
Having been warned by the court, the prosecutor continued to influence the jury by injecting what was intended by him to represent a confession of guilt by defendant. No reasonable man could doubt the effect of such material on a jury.
I find applicable to the prosecutor’s statements a description voiced years ago by the Supreme Court and reiterated in People v Robinson, supra, at 563-564:
"The statements were] inexcusable, wholly without warrant of law, planted irremovable impression, and rendered defendant a victim of the error. The prosecutor by such statements] of intended proof of defendant’s guilt brought an effect so probable, so inadmissible, and so prejudicial as to constitute irreparable error.” People v Bigge, 288 Mich 417, 421 ; 285 NW 5 (1939).
I would reverse and remand for new trial.