What happens when prosecutors make improper emotional appeals to juries? State v. Akok Explained

In State v. Akok, the Utah Court of Appeals addressed the serious issue of prosecutorial misconduct during closing arguments and the trial court’s duty to provide adequate curative instructions. The case provides important guidance for appellate practitioners on preserving error and seeking appropriate remedies when prosecutors cross ethical lines.

Background and Facts

Defendant David Deng Akok was charged with rape after an incident at the victim’s apartment. The case turned largely on credibility, as Akok claimed the sexual contact was consensual and occurred in his car, while the victim testified she was raped in her apartment. Physical evidence showed Akok’s semen was present but could not definitively establish whether the contact was consensual or forced.

Key Legal Issues

During rebuttal closing argument, the prosecutor told the jury: “They took advantage of a very vulnerable victim. Don’t let them take advantage of it again.” Defense counsel objected and moved for mistrial, then requested a specific curative instruction. The prosecutor agreed to the proposed instruction, but the trial court gave only a general admonition about closing arguments not being evidence.

Court’s Analysis and Holding

The Court of Appeals found the prosecutor’s statement constituted prosecutorial misconduct because it appealed to jurors’ emotions and suggested they had a duty to protect the victim rather than impartially apply the law. The court applied a two-part test: whether the statement called attention to improper matters and whether the error was substantially prejudicial.

Finding prejudice, the court noted: (1) the evidence was conflicting rather than overwhelming; (2) defense counsel had no opportunity to respond during rebuttal; and (3) the trial court’s general admonition failed to specifically address the improper statement. The court emphasized that when both parties agree to a curative instruction, trial courts should generally provide it unless there are specific reasons not to do so.

Practice Implications

This decision highlights the importance of requesting specific, targeted curative instructions rather than accepting boilerplate language. When prosecutors make improper emotional appeals, practitioners should craft precise language addressing the specific misconduct and seek opposing counsel’s agreement where possible. The case also demonstrates that prosecutorial misconduct during rebuttal carries heightened prejudicial effect since defense counsel cannot respond.