misconduct constitutes obvious error in North Dakota

2024“When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 ; see also State v. Samaniego, 2022 ND 38, ¶ 16 , 970 N.W.2d 222 , as amended (May 18, 2022) (“When prosecutorial misconduct is raised for the first time on appeal, this Court reviews for obvious error.”). [¶22] “Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about a defendant’s invocation of the right to remain silent.” Gaede, 2007 ND 125, ¶ 18 .

2024“When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 ; see also State v. Samaniego, 2022 ND 38, ¶ 16 , 970 N.W.2d 222 , as amended (May 18, 2022) (“When prosecutorial misconduct is raised for the first time on appeal, this Court reviews for obvious error.”). [¶22] “Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about a defendant’s invocation of the right to remain silent.” Gaede, 2007 ND 125, ¶ 18 .

2024“When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 ; see also State v. Samaniego, 2022 ND 38, ¶ 16 , 970 N.W.2d 222 , as amended (May 18, 2022) (“When prosecutorial misconduct is raised for the first time on appeal, this Court reviews for obvious error.”). [¶22] “Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about a defendant’s invocation of the right to remain silent.” Gaede, 2007 ND 125, ¶ 18 .

2024“When a defendant fails to object to alleged misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 ; see also State v. Samaniego, 2022 ND 38, ¶ 16 , 970 N.W.2d 222 , as amended (May 18, 2022) (“When prosecutorial misconduct is raised for the first time on appeal, this Court reviews for obvious error.”). [¶22] “Testimony or argument about a defendant's post-arrest silence may constitute an improper comment about a defendant’s invocation of the right to remain silent.” Gaede, 2007 ND 125, ¶ 18 .

2016State v. Evans, 1999 ND 70, ¶ 9 , 593 N.W.2d 336 .

2016State v. Evans, 1999 ND 70, ¶ 9 , 593 N.W.2d 336 .

2014“When a defendant fails to object to alleged [prosecutorial] misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 . *119 “[O]ur review is limited to determining if the prosecutor’s conduct prejudicially affected [the defendant’s] substantial rights, so as to deprive [the defendant] of a fair trial.” State v. Burke, 2000 ND 25, ¶ 22 , 606 N.W.2d 108 .

2011State v. Evans, 1999 ND 70, ¶ 9 , 593 N.W.2d 336 . “[0]ur review is limited to determining if the prosecutor’s conduct prejudicially affected [the defendant’s] substantial rights, so as to deprive [the defendant] of a fair trial.” State v. Burke, 2000 ND 25, ¶ 22 , 606 N.W.2d 108 . “ ‘In deciding if there was obvious error, we consider the probable effect of the prosecutor’s improper comments on the jury’s ability to judge the evidence fairly.’ ” Evans , at ¶ 9.

2014“When a defendant fails to object to alleged [prosecutorial] misconduct, we will not reverse unless the misconduct constitutes obvious error.” State v. Vondal, 2011 ND 186, ¶ 12 , 803 N.W.2d 578 . *119 “[O]ur review is limited to determining if the prosecutor’s conduct prejudicially affected [the defendant’s] substantial rights, so as to deprive [the defendant] of a fair trial.” State v. Burke, 2000 ND 25, ¶ 22 , 606 N.W.2d 108 .

2011State v. Evans, 1999 ND 70, ¶ 9 , 593 N.W.2d 336 . “[0]ur review is limited to determining if the prosecutor’s conduct prejudicially affected [the defendant’s] substantial rights, so as to deprive [the defendant] of a fair trial.” State v. Burke, 2000 ND 25, ¶ 22 , 606 N.W.2d 108 . “ ‘In deciding if there was obvious error, we consider the probable effect of the prosecutor’s improper comments on the jury’s ability to judge the evidence fairly.’ ” Evans , at ¶ 9.

2024In Wickham v. State, this Court explained: “A comment on the defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.” State v. Wilder, 2018 ND 93 , ¶ 5, 909 N.W.2d 684 . “[B]ecause the Miranda warning carries an implicit ‘assurance that silence will carry no penalty,’” a defendant’s post-arrest silence cannot be used against him at trial.

2024In Wickham v. State, this Court explained: “A comment on the defendant’s post-arrest silence is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the United States Constitution.” State v. Wilder, 2018 ND 93 , ¶ 5, 909 N.W.2d 684 . “[B]ecause the Miranda warning carries an implicit ‘assurance that silence will carry no penalty,’” a defendant’s post-arrest silence cannot be used against him at trial.

2014“In determining whether a prosecutor’s improper statements in closing argument prejudicially affected the defendant’s rights, ... we examine: (1) the cumulative effect of the misconduct; (2) the strength of the properly admitted evidence of guilt; and (3) the curative actions taken by the trial court.” State v. Strutz, 2000 ND 22, ¶ 23 , 606 N.W.2d 886 .

2014“In determining whether a prosecutor’s improper statements in closing argument prejudicially affected the defendant’s rights, ... we examine: (1) the cumulative effect of the misconduct; (2) the strength of the properly admitted evidence of guilt; and (3) the curative actions taken by the trial court.” State v. Strutz, 2000 ND 22, ¶ 23 , 606 N.W.2d 886 .