Jersey City, New Jersey – From the earliest years of childhood, we are taught that words matter. What you say has an impact on yourself and those around you. What we aren’t taught, and often don’t learn until later in life, is that circumstances also matter. Words that have a disastrous or triumphant effect in one situation, or for one person, may have the opposite effect, or mean nothing to someone else. On June 23, 2020, the New Jersey Supreme Court decided State. V. Greene, which profoundly demonstrated all these principles.

Greene and a co-defendant, Lewis, were tried for murder. The evidence consisted of: an eye witness who did not mention any names until nearly an hour into the interview and who was unsure about the identification when she named Greene, the testimony of a cooperating witness who said shortly after the shooting Greene and Lewis ran out of the house where the murder was committed and Lewis’s DNA on a hat also containing the victim’s blood. During the investigation, Greene’s grandmother had provided a statement to law enforcement detailing how Greene admitted the murder to her and said he didn’t mean for anyone to be killed.

In his opening statement to the jury, the prosecutor told the jury they would hear from Greene’s grandmother, who would recount the confession, which was the most damning evidence possible. The grandmother subsequently refused to testify. Both Green and Lewis were convicted. On appeal, the Appellate Division reversed both convictions because the prosecutor’s statement about a confession that was never presented as evidence was too prejudicial to both defendants.

The Supreme Court agreed the prosecutor’s statement was too prejudicial as to Greene and affirmed the Appellate Court’s decision as to Greene. However, explaining that because the grandmother’s statement was not connected to Lewis, and because there was strong evidence implicating Lewis including the DNA on the hat, the prosecutor’s statement was not so prejudicial as to Lewis and Lewis’s conviction was reinstated.

The Court discussed the risk a prosecutor takes when describing in detail anticipated testimony, especially a confession, because if such evidence is ultimately not presented to the jury it is unreasonable to believe a jury would just be able to ignore the details presented by the prosecutor. But, as this case illustrates, it is a risk, not an absolute rule. Even though it was one sentence applied to two people at the same trial, because the content of the sentence implicated one but not the other, and because the evidence against one was much greater than the other, the impact of that sentence differed between the two people.

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