           IN THE SUPREME COURT OF THE STATE OF DELAWARE


MANUEL MORALES,                         §
                                        §     No. 119, 2015
      Defendant Below-Appellant,        §
                                        §     Court Below:
             v.                         §     Superior Court of the
                                        §     State of Delaware
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below-Appellee.         §     Cr. I.D. No. 1309012678


                             Submitted: January 27, 2016
                              Decided: January 28, 2016

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.

Bernard J. O’Donnell, Esquire, Office of Public Defender, Wilmington, Delaware for
Appellant.

Karen V. Sullivan, Esquire, Department of Justice, Wilmington, Delaware for Appellee.



VALIHURA, Justice, for the Majority:
           Pending before this Court is an appeal from Manuel Morales’s (“Morales”)

conviction and sentence in the Superior Court. After a two-day trial, Morales was found

not guilty of Offensive Touching, but guilty of Robbery First Degree. He was sentenced

to ten years of incarceration at Level V, suspended after three years for decreasing levels

of supervision. Seeking reversal of his conviction and sentence, Morales argues for the

first time on appeal that the prosecutor’s statement to the jury during summation that he

was “clearly guilty” denied him a fair trial.

           As set forth below, the prosecutor’s improper comment did not amount to plain or

repetitive error requiring reversal, and we, therefore, AFFIRM Morales’s conviction and

sentence.

                 I.      FACTUAL AND PROCEDURAL BACKGROUND

          On August 3, 2013, Morales entered a Metro PCS store on Kirkwood Highway in

Elsmere, Delaware.          While holding a pair of scissors, Morales approached Ruth

Rodriguez (“Rodriguez”), the sole Metro PCS employee present in the store.1 Morales

jumped over the counter and demanded money, indicating that, if Rodriguez did not

comply, he would kill her. When Rodriguez opened the register, Morales took money

out of it. As he ran out of the store, Morales collided with Kelly Fossett (“Fossett”), who

was entering the store through the front door. Fossett watched Morales run up a side

street toward the rear of the building. The police arrested Morales over a month later, on

September 20, 2013.



1
    Rodriguez stated that she was “98 percent to 100” percent certain that Morales held scissors.
                                                  1
       On May 20 and 21, 2014, trial was held for Morales on charges of Robbery First

Degree and Offensive Touching.2 The case centered on identity evidence. Rodriguez

and Fossett provided in-court identifications of Morales, based, in part, on their

recognition of a tattoo on his neck.3 Rodriguez and Fossett also testified regarding their

separate pre-trial photo identifications of Morales. In addition, the jury viewed a video

obtained from the store’s surveillance camera. The video showed a tattoo in the shape of

a skull on the robber’s left arm that matched a tattoo on Morales’s left arm. However, no

physical evidence linked Morales to the robbery: a K-9 failed to track the perpetrator; the

police did not recover the scissors, money, or items of clothing matching those worn by

the robber; and Morales’s fingerprints were not found at the store. The jury convicted

Morales of Robbery First Degree.

                                       II.    ANALYSIS

                               A.     Contentions of the Parties

       On appeal, Morales argues that a statement by the prosecutor in her rebuttal

closing argument was an impermissible expression of her personal belief that he was

guilty. At trial, the prosecutor argued to the jury: “[t]he defendant is clearly guilty of

robbery that happened that day.          I ask you to return a verdict of guilty on both




2
  A grand jury charged Morales with Robbery First Degree and two counts of Offensive
Touching. The State entered a nolle prosequi on one of the Offensive Touching counts and
proceeded to trial on the Robbery First Degree count and only one count of Offensive Touching.
3
  After a colloquy with the trial court, and with permission from defense counsel, the State
requested that Morales display his neck tattoo for the jury by having him stand alongside the jury
box, in front of the prosecutor’s table. Further, at trial, defense counsel noted several times that
the pre-trial photo lineup included only one individual with a neck tattoo—Morales.
                                                 2
offen[s]es.”4 The State responds that the comment was a proper argument based on the

evidence.

                           B.      Standard and Scope of Review

       Because, at trial, Morales did not timely object to the prosecutor’s statement and

the trial judge did not intervene sua sponte, we review for plain error.5 “[T]he doctrine of

plain error is limited to material defects which are apparent on the face of the record[;]

which are basic, serious, and fundamental in their character[;] and which clearly deprive

an accused of a substantial right, or which clearly show manifest injustice.”6

       Plain error review of asserted prosecutorial misconduct requires a tripartite

analysis.7   First, we examine the record de novo to determine whether misconduct

occurred.8 If this Court finds no misconduct, the analysis ends.9 Second, we apply the

standard articulated in Wainwright v. State10 to determine whether any misconduct

constituted plain error.11 To satisfy Wainwright, the defendant must show that “the error

complained of [was] so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial process.”12       If this Court finds plain error under

Wainwright, it must reverse without reaching the third step of the analysis. Third, even if


4
  A13 (Tr. 32:3-6).
5
  Baker v. State, 906 A.2d 139, 150 (Del. 2006) (“Where defense counsel fails to raise a timely
and pertinent objection to alleged prosecutorial misconduct at trial and the trial judge does not
intervene sua sponte, we review only for plain error.”) (citations omitted).
6
  Id. (citing Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)).
7
  See Spence v. State, 2015 WL 7168159, at *9-10 (Del. Nov. 13, 2015).
8
  Baker, 906 A.2d at 150.
9
  Id.
10
   504 A.2d 1096 (Del. 1986).
11
   Baker, 906 A.2d at 150.
12
   Wainwright, 504 A.2d at 1100 (citing Dutton v. State, 452 A.2d 127, 146 (Del. 1982)).
                                               3
the misconduct does not require reversal under Wainwright, this Court may reverse under

Hunter v. State13 if it finds that “the prosecutor’s statements are repetitive errors that

require reversal because they cast doubt on the integrity of the judicial process.”14

     C.     The Prosecutor’s Statement to the Jury Did Not Deny Morales the Right to a
                                         Fair Trial

                 1.   The Prosecutor’s “Clearly Guilty” Comment Was Improper

          This Court has repeatedly held that it is improper for a prosecutor to express his or

her personal belief or opinion as to the guilt of a defendant.15 Such comments, when

made without qualification, risk denying a defendant’s right to a fair trial by

“emasculat[ing]       the   constitutionally   guaranteed      presumption      of   innocence.”16

Accordingly, improper remarks that “prejudicially affect[] substantial rights of the

accused” ordinarily require reversal.17

          The State argues that, without the prosecutor stating “I believe” or “I think,” the

prosecutor’s statement cannot be transformed into an expression of the prosecutor’s
13
   815 A.2d 730 (Del. 2002).
14
   Id. at 733.
15
   See, e.g., Spence, 2015 WL 7168159, at *12; Kirkley v. State, 41 A.3d 372, 378 (Del. 2012);
Brokenbrough v. State, 522 A.2d 851, 858 (Del. 1987).
16
   Kirkley, 41 A.3d at 378. See also Holtzman v. State, 1998 WL 666722, at *9 (Del. July 27,
1998) (discussing the defendant’s right to a verdict decided “exclusively on the properly
admissible evidence” and concluding that a prosecutor’s statements expressing his personal
belief that “[t]he defendant is guilty[,]” that the alleged victim was truthful in her testimony, and
that the prosecutor could not “find a great deal of nice things to say about someone who
[committed the alleged acts]” constituted plain error).
17
   Brokenbrough, 522 A.2d at 855 (citation omitted). In Brokenbrough, this Court cited with
approval United States v. LeFevre, 483 F.2d 477 (3rd Cir. 1973), and noted that “the Third
Circuit and the ABA [Standards Relating to the Prosecution Function and the Defense Function]
condemned expressions of personal opinion by prosecutors relating to credibility and guilt, even
when it was clear that the comments of personal opinion by the prosecutor in his closing
argument were based on the evidence.” Brokenbrough, 522 A.2d at 859 (citation omitted). The
Third Circuit, in LeFevre, further observed that “such comments, if based on the evidence, are
not reversible errors per se . . . .” LeFevre, 483 F.2d at 479.
                                                 4
opinion.18 But, as this Court recently concluded in Spence v. State,19 a plain statement to

the jury that a defendant is guilty is improper.20 In Spence, the prosecutor displayed a

PowerPoint slide to the jury, which incorporated bold, italicized, and proportionately

enlarged text that read: “The defendant is guilty of all the charges against him.”21 This

Court held that the statement was improper, and that “the State should have included a

qualifier before its statement, such as, for example, ‘the evidence demonstrates.’”22

       Here, the prosecutor stated the following to the jury during closing argument:

“The defendant is clearly guilty of robbery that happened that day. I ask you to return a

verdict of guilty on both offen[s]es.”23 These words were the last that the jury heard prior

to receiving instructions from the trial judge and beginning their deliberations. 24 As in

Spence, the prosecutor here did not temper the statement with qualifying language.


18
   Use of the first person by a prosecutor is not a necessary predicate for a finding of improper
expression of personal opinion as to the guilt or innocence of a defendant—mere implication or
insinuation that the defendant is guilty will ordinarily suffice. See Berger v. U.S., 295 U.S. 78,
88 (1935) (observing that a prosecutor’s “improper suggestions, insinuations, and, especially,
assertions of personal knowledge are apt to carry much weight against the accused when they
should properly carry none”) (emphasis added); Kirkley, 41 A.3d at 376-77 (“The prosecutor
plays a special role in the adversarial system that is not limited to representing the State but also
includes the responsibility as a minister of justice. This responsibility demands that the
prosecutor avoid improper suggestions, insinuations, and assertions of personal knowledge in
order to ensure that guilt is decided only on the basis of sufficient evidence.”) (citations omitted)
(emphasis added).
19
    2015 WL 7168159 (Del. Nov. 13, 2015). The current version of the ABA Prosecution
Function provides: “The prosecutor should not express his or her personal belief or opinion as to
the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Prosecution
Function Standard 3-5.8(b) Argument to the Jury (1993). Further, the ABA Prosecution
Function sets forth: “The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence.” Id. at 3-5.8(d).
20
   Spence, 2015 WL 7168159, at *12.
21
   Id. (emphasis removed).
22
   Id.
23
   A13 (Tr. 32:3-6) (emphasis added).
24
   See A13-14.
                                                 5
Accordingly, the statement was improper.25 Like the United States Court of Appeals for

the Third Circuit, we also “recognize the line between permissible and impermissible

comment is a thin one, and precision of expression can be difficult.”26 Nevertheless, we

continue to disapprove of expressions of personal opinion by prosecutors on credibility

and guilt. In cases such as the instant one, however, our analysis does not end upon

reaching a determination that a prosecutorial comment was improper.

              2.   The Prosecutorial Misconduct Did Not Amount to Plain Error

       Under Wainwright, this Court will reverse if “the error complained of [was] so

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the

trial process.”27 Stated otherwise, the error “must have affected the outcome of the

trial.”28 In cases implicating improper vouching, “plain error is more likely to be found .



25
   Our sister courts have reached similar conclusions. For example, in Pantano v. State, 138 P.3d
477 (Nev. 2006), the Supreme Court of Nevada considered the following prosecutorial
statement: “There’s no doubt he’s guilty. This is a parent’s worst nightmare. Make them feel
better. Thank you.” Id. at 484. The State argued that the prosecutor made this statement after
discussing the evidence. The Nevada Supreme Court observed: “Regardless of any logical or
rhetorical connection that the State might wish to draw during closing argument, this type of
comment is always improper. With regard to the statement, ‘[t]here’s no doubt he’s guilty,’ the
prosecutor improperly stated her personal opinion regarding [the defendant’s] guilt.” Id.
(alterations in original and added) (citation omitted). A similar result was reached in
Commonwealth v. Torres, 772 N.E.2d 1046 (Mass. 2002). There, the Supreme Judicial Court of
Massachusetts concluded that the following prosecutorial statement was improper: “He’s guilty
as charged.” Id. at 1051. The Supreme Judicial Court of Massachusetts concluded that the
statement amounted to an “improper statement of personal belief.” Id. (citation omitted). See
also Watters v. State, 313 P.3d 243, 248 (Nev. 2013) (“The prosecution could not orally declare
the defendant guilty in opening statement[s]. Doing so would amount to improper argument and
the expression of personal opinion on the defendant’s guilt, which is forbidden.”) (emphasis in
original) (citation omitted).
26
   LeFevre, 483 F.2d at 479.
27
   Wainwright, 504 A.2d at 1100 (citing Dutton, 452 A.2d at 146).
28
   Keyser v. State, 893 A.2d 956, 959 (Del. 2006) (citing U.S. v. Olano, 507 U.S. 725, 732-34
(1993); Wainwright, 504 A.2d at 1100).
                                               6
. . where witness credibility is central [to] a ‘close case,’ and where the error is so

egregious that the trial judge should have intervened sua sponte to correct it.”29

       Morales contends that the State’s evidence against him was limited to two “quick

and tense” eyewitness identifications, without any corroborating, physical evidence. The

State did not brief the plain error analysis, relying instead on its argument that the

statement was not prosecutorial misconduct.30

       Because the evidence against Morales predominantly consisted of witness

identifications, witness credibility was central to the case.          Additional evidence

corroborated the eyewitness testimony of Rodriguez and Fossett, such that the case was

not close. Morales had two distinctive tattoos, including one on his neck that both

witnesses described and that the jury viewed in person. Based on the robber’s neck tattoo

and the portion of the robber’s face Rodriguez was able to view during the commission of

the crime, Rodriguez identified Morales in a pre-trial photo lineup and in court. Fossett,

who came face-to-face with Morales as he was running out of the store, also identified

him as the robber in a pre-trial photo lineup and in court. These identifications were

corroborated by a store surveillance video, which showed that the robber had a tattoo on

his arm matching one on Morales’s arm.




29
   Whittle v. State, 77 A.3d 239, 248 (Del. 2013) (citing Clayton v. State, 765 A.2d 940, 944
(Del. 2001)).
30
   Ans. Br. 10-11 (“Because there was no prosecutorial misconduct, the Court’s analysis ends.
There is no need to engage in an analysis under Wainwright (plain error) or Hunter (repetitive
error that casts doubt on the integrity of the judicial process).”).
                                              7
       In view of the evidence in favor of conviction, the prosecutor’s “clearly guilty”

statement was not so clearly prejudicial as to jeopardize the fairness and integrity of the

trial process. Consequently, the misconduct does not satisfy the Wainwright standard.

       Finally, we proceed by applying the third analytical step in the plain error analysis,

the Hunter test. The prosecutorial misconduct here was isolated to one statement during

summation, and did not constitute repetitive errors that require reversal.

                                  III.   CONCLUSION

        Although the prosecutor’s statement during her rebuttal closing argument that

“[t]he defendant is clearly guilty” was improper, it was neither plain error under

Wainwright nor repetitive error requiring reversal under Hunter.             Accordingly, we

AFFIRM Morales’s conviction and sentence.




                                             8
STRINE, Chief Justice, Concurring:

      I concur in the result reached in the Court’s well-crafted opinion, with which I

have one good faith and respectful difference of opinion. I write separately because I do

not believe that the prosecutor’s statement that “the defendant is clearly guilty” was

improper at all, when fairly considered in full context. Even more, I do not see how the

statement could be so plainly objectionable as to be a proper basis for plain error. Plain

error should be, by definition, blatant, and such as to require a trial judge to intervene

spontaneously even in the absence of an objection.

      It is worth citing the passage in which this statement appeared:

      Kelly Fossett, on the other hand, just happened to be walking in, and wasn’t
      under the stress of the situation. What she told you is she is absolutely
      certain that the person seated right there is the person who committed this
      robbery. The person who was leaving the Metro PCS after the robbery was
      committed.


                                     *      *        *



      The tattoo was there, Ladies and gentlemen, because the defendant has a
      tattoo on his neck on a very visible place, on a place that was seen by the
      two witnesses in this case.


                                     *      *        *



      We have our identifications, and 911 call and the video, but we shouldn’t
      rely on that. We don’t have anything else because we don’t have scissors,
      or clothing, or any of that. Sergeant Shelton told you he tried to execute
      search warrants. He could not find a location where the defendant lived.
      He couldn’t. Also told you that when he arrested him, it was on the 20th of
      September, six weeks later. So would you expect to find the defendant

                                            9
       carrying around these scissors and wearing the same clothing from a
       robbery that he committed six weeks before? Use your common sense.

       Kelly Fossett, absolutely certain, photo lineups, both pick out the same
       person. Photo lineups told the person who did this is not necessarily in
       there. We also have tattoos on the arm. Sergeant Shelton told you [when]
       he viewed that video, he noticed a tattoo. That tattoo he also noticed when
       he arrested the defendant. Same tattoo.


       Ladies and gentlemen, again I thank you. The defendant is clearly guilty of
       robbery that happened that day. I ask you to return a verdict of guilty on
       both offenses. Thank you.31


As can be seen, the defendant did not object to the prosecutor’s statement. And although

we have cautioned prosecutors to avoid the first person to the extent possible, 32 human

beings can make lapses. Plain error is a purposely difficult standard to meet and requires

that “the error complained of must be so clearly prejudicial to substantial rights as to

jeopardize the fairness and integrity of the trial process.”33 I do not believe Morales has

met it here. For reasons I will explain, it is difficult for me to understand that we would

expect a trial judge to act on the basis of such an isolated, innocuous statement given its

clear contextual relation to a recitation of the evidence.

       For starters, in real time, even more than on paper, the isolated statement would

likely have been heard as referring directly to the evidence the prosecutor just


31
   App. to Opening Br. at 13.
32
   See, e.g., Brokenbrough v. State, 522 A.2d 851, 859 (Del. 1987) (“We do not adopt a rule
which says that the use of the word ‘I’ or ‘we’ in a closing argument is per se improper. . . .
There is a great difference in ‘leaving’ a point before the jury and ‘suggesting’ it personally.
Nevertheless, arguments in the first person are extremely dangerous and should be assiduously
avoided.”).
33
   Williams v. State, 98 A.3d 917, 920 (Del. 2014) (quoting Wainwright v. State, 504 A.2d 1096,
1100 (Del. 1986)) (internal quotation marks omitted).
                                              10
summarized. Therefore, it is difficult to see why a judge would decide to intervene. As

important, because of those realities and the quick and isolated nature of the statement, a

trial judge could assume the defense made a reasoned decision not to object. As this

Court said in Trump v. State:

       [W]hen a defendant does not object to language used in a closing argument,
       the appellate court can easily assume that the defendant is satisfied that
       there is no prejudice because inaction on the part of the defense counsel
       may lead to a conclusion by the appellate court that the attorney made a
       tactical decision to waive objection. Moreover, when the trial court, closer
       to the scene of the trial and with the benefit of the ‘feel’ for the trial, does
       not intervene to declare a mistrial or give a curative instruction, a
       deferential appellate court is reluctant to vacate a conviction that is
       supported by substantial evidence. 34


       Of course, had the defendant objected, the trial court might well have instructed

counsel to rephrase the statement, and she should and likely would have said: “I am sorry

your honor, I meant to say that based on this evidence, the State submits that there is

clear evidence of the defendant’s guilt and asks for you to reach a verdict in its favor.”

That would have been more than sufficient and not any different in substance, because

the prosecutor’s statement did not imply that she had “personal superior knowledge,

beyond what is logically inferred from the evidence at trial.” 35        But, there was no

objection.




34
    Trump v. State, 753 A.2d 963, 967–68 (Del. 2000) (quoting Robert W. Clifford, Identifying
and Preventing Improper Prosecutorial Comment in Closing Argument, 51 MAINE L. REV. 242,
257–58 (1999)) (internal quotation marks omitted).
35
   Kirkley v. State, 41 A.3d 372, 377 (Del. 2012).
                                             11
       And to repeat, here, the prosecutor’s statement that the defendant was “clearly

guilty” directly followed her thorough summary of the evidence. 36 In fact, the prosecutor

did not even use the “I” word.37 As this Court held in Mills v. State, “in a closing

argument, prosecutors are ‘allowed and expected’ to make and explain inferences from

the evidence that support the prosecution’s theory that the defendant is guilty.”38 Given

the statement’s proximity to the prosecutor’s summary of the evidence, the statement

“flow[ed] from the evidence presented” and was not improper vouching.39




36
    See CHARLES E. TORCIA, WHARTON’S CRIMINAL PROCEDURE § 451, at 1021–26 (13th ed.
1991) (“[I]f the prosecutor’s belief appears to be a mere deduction from the evidence introduced
at the trial, the statement is not improper, the theory being that the prosecutor is allowed in
argument to assist the jury in analyzing, evaluating, and applying the evidence by drawing
appropriate deductions therefrom.”); BARBARA E. BERGMAN & NANCY HOLLANDER, WHARTON’S
CRIMINAL EVIDENCE § 4.3, at 283 (15th ed. 1997) (“If the argument is a fair discussion of the
evidence actually admitted during the course of the trial and the reasonable inferences from that
evidence, it is based on relevant evidence and is permissible.”).
37
   See Burns v. State, 76 A.3d 780, 790 (Del. 2013) (explaining that the prosecutor, who said “he
did this,” did not use the word “I” and “did not imply that she had superior personal knowledge,”
but rather made “a logical inference that could have been made based on the evidence”).
38
   Mills v. State, 2007 WL 4245464, at *3 (Del. Dec. 3, 2007) (quoting Booze v. State, 2007 WL
445969, at *4 (Del. Feb. 13, 2007)); see also Kirkley, 41 A.3d at 377 (“This Court has
consistently reaffirmed that the prosecutor is allowed to argue all legitimate inferences of the
defendant’s guilt that follow from the evidence.”).
39
   Id. The Majority Opinion notes that in a recent case, Spence v. State, a slide that contained the
words “[t]he defendant is guilty of all charges against him” was found to be objectionable. 2015
WL 7168159, at *12 (Del. Nov. 13, 2015). As is clear from the learned decision in that case, the
focus of that decision was on the problems presented by a detailed PowerPoint presentation to
the jury. These are different from oral statements in closing arguments for a few reasons, and
one of them is that they are obviously not spontaneous. As or more important, the PowerPoint
presentation in that case contained a number of highly inflammatory slides that were not
appropriately tailored to record evidence (e.g., emphasizing the word “murder” using large, red
lettering and placing it next to an image of the decedent’s body). Id. at 4. The statement like the
one here was part and parcel of the presentation and therefore would be read to be premised on
the improper statements. Here, the statement in issue is preceded by nothing improper at all, and
in context and real time, most logically relates to the recitation of the record evidence that
preceded it.
                                                12
       And there is another important consideration in evaluating the statement at issue

here. A jury knows in every case that the prosecutor subjectively believes the defendant

to be guilty.40 In fact, as an ethical matter, it is critical that the State and its prosecutor

believe they are prosecuting a guilty defendant.41 An isolated statement of the kind at

issue here therefore poses no danger that the jury is being told to believe the police or the

prosecutor personally over the other evidence. Nor does it pose a danger that there is

some basis for conviction other than the evidence which the prosecutor recited just the

moment before.

       I agree, of course, with the Majority that there is no prejudice. But, the reason I

believe that no prejudice can be found is that the statement was not an improper

comment. Had the statement implied that the State had evidence of guilt it could not


40
   See WAYNE R. LAFAVE, ET AL., 4 CRIM. PROC. § 13.1(b) n.34.2 (3d ed. 2014) (explaining the
“common assumption” that the prosecutor can proceed only when she believes that the defendant
is guilty); Sarah Anne Mourer, Believe It or Not: Mitigating the Negative Effects Personal Bias
and Belief Have on the Criminal Justice System, 43 HOFSTRA L. REV. 1087, 1096 (2015) (noting
that “it is clear that the prosecutor must believe that the defendant is guilty to proceed to trial”);
Alafair S. Burke, Talking About Prosecutors, 31 CARDOZO L. REV. 2119, 2134–35 (2010)
(“Because the prosecutor believes that the defendant is guilty, she is likely to weigh the evidence
against him as strong.”).
41
   See Alafair S. Burke, Prosecutorial Agnosticism, 8 OHIO ST. J. CRIM. L. 79, 79 (2010) (“Most
legal ethicists maintain that an ethical prosecutor should not pursue criminal charges against a
defendant only if the prosecutor personally believes that the defendant is guilty.”); Bruce A.
Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J. 607, 640–41(1999)
(“Prosecutors have the power, freedom and responsibility to make decisions for the sovereign in
the criminal context. . . . They must satisfy themselves of an individual’s guilt as a precondition
to determining that the conviction of an individual is an end to be sought on behalf of the state or
the federal government.”); Bennett L. Gershman, A Moral Standard for the Prosecutor’s
Exercise of the Charging Decision, 20 FORDHAM URB. L.J. 513, 522 (1993) (“[B]efore making
the ultimate decision to charge, the prosecutor should then assure herself that she is morally
certain that the defendant is both factually and legally guilty . . . . Finally, the prosecutor who
acknowledges moral uncertainty about a defendant’s guilty but decides nonetheless to bring
charges, violates the prosecutor’s special obligation to seek justice, and tacitly invites the system
to miscarry.”).
                                                 13
present (e.g., insinuating to a jury exposed to police procedurals on television that

Warren-era constitutional holdings such as Miranda somehow kept out additional

evidence of the defendant’s guilt in the State’s possession), it is likely that the Majority

would have found prejudice. Likewise, had the statement suggested that certain

witnesses should be given more credence because they, for example, are police officers, it

is likely that the Majority would have found prejudice. Precisely because the statement

does not in any way encourage the jury to evaluate the case on any basis other than

proper record evidence, it poses no threat of prejudice. For the same reason, I am unable

to see how the statement, taken alone, can be deemed prosecutorial misconduct, much

less of a plain kind.42 I do not support holding either prosecutors or trial judges to a

standard of human perfection that I know I myself fall far short of meeting.




42
   It is easy to lose sight of what the words “plain error” mean. Plain error requires a flaw in the
trial process so patent that a judge must intervene without an objection. See Swan v. State, 820
A.2d 342, 356 (Del. 2003) (“Improper prosecutorial comments in closing argument only
constitute plain error if . . . the comment is so clearly prejudicial that defense counsel’s failure to
object is inexcusable and the trial judge must intervene sua sponte in the interest of fundamental
fairness.”).
                                                  14
