Can defense counsel reasonably choose not to object to prosecutorial statements about the presumption of innocence? State v. Harris Explained

The Utah Court of Appeals addressed a recurring issue in criminal trials: whether defense counsel provides ineffective assistance by failing to object to prosecutorial statements about the presumption of innocence during closing arguments.

Background and Facts

Rickey Harris was charged with several offenses for attacking his wife, including aggravated kidnapping and assault. During the State’s closing argument, the prosecutor told the jury that Harris’s “presumption of innocence” was now “gone” based on the evidence presented. Defense counsel did not object to this statement but instead addressed the presumption of innocence in his own closing argument, reading the relevant jury instruction and arguing that the State had not overcome the presumption.

Key Legal Issues

Harris argued that his trial counsel was ineffective for not objecting to the prosecutor’s statement and, alternatively, that the district court committed plain error by failing to correct the statement sua sponte. The case presented the unresolved question of whether prosecutors may argue during closing that the presumption of innocence no longer applies based on trial evidence.

Court’s Analysis and Holding

The Court of Appeals rejected both arguments. For the ineffective assistance claim, the court noted that “the question is not whether the prosecutor’s comments were proper, but whether they were so improper that counsel’s only defensible choice was to interrupt those comments with an objection.” The court found that the law regarding such prosecutorial statements was unsettled, with cases from other jurisdictions reaching conflicting conclusions. Given this uncertainty, defense counsel could reasonably believe an objection might be overruled and could strategically choose to address the issue through responsive argument instead.

The court emphasized that defense counsel had adequately responded by reading the presumption of innocence instruction to the jury and arguing that the State had not met its burden. For the plain error claim, the court found the alleged error was not “obvious” to the trial court because no controlling Utah authority had addressed this specific scenario.

Practice Implications

This decision reinforces that defense attorneys have strategic discretion in choosing when to object during closing arguments. When the law is unclear, attorneys may reasonably conclude that responsive argument is more effective than objection, particularly where an overruled objection might appear to give “judicial approval” to the problematic statement. The court left open the underlying question of whether such prosecutorial statements are actually improper, noting this remains “an open question” in Utah.