“Prosecutorial misconduct!” objected the defense attorney during the state’s closing argument.  What had the prosecutor argued that could have potentially misled the jury?

“We all know that the defendant has the presumption of innocence. But once he decides to take the stand, as he did in this case, he does not have the presumption of credibility. He must be viewed and treated like any other witness.”

The defense attorney argued that the state was improperly shifting the burden of proof onto the defendant, by virtually instructing the jury members to disbelieve him, which would mean he has to prove that he is innocent.

As the judge pointed out, though, the prosecutor had very carefully stated that the defendant is like any other witness, and his credibility should be scrutinized by the jury like any other witness, in order to decide whose word they believe.

So the objection was overruled, and there was no mistrial.

Since the 1800’s when defendants in the US gained the right to testify on their own behalf, there have been ongoing arguments over what jury instructions must say about defendant testimony.  Jurors must presume the defendant is innocent until proven guilty.  But jurors do not have to swallow whole whatever the defendant says on the stand.  So how can we tell the jury this, without making it sound like they should presume guilt?

The general consensus now seems to be that jury instructions should include the fact that it is up to the jury to determine how credible all witnesses, including the defendant, appear on the stand.  But it would be unfair to single out the defendant’s testimony, and ask the jurors to presume anything other than his innocence, until his guilt is proven beyond a reasonable doubt.  A fine line, indeed.