Publication Date

2008

Document Type

Article

Abstract

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was not. I hope to convince you in this Article that the court was wrong to overrule its precedent, and that the court should now acknowledge the error.

The Pabst court broadly held that attorneys may not talk about witness credibility during closing argument. That rule is unwise, unworkable, and unnecessary. It's unwise because trials usually come down to credibility issues, and fact-finders-usually juries-deserve to have our best effort in focusing on the real issues before them. It's unworkable because criminal defendants have a constitutional right to address credibility issues in closing argument, and a one-sided rule cannot work in an adversarial system of justice. And it's unnecessary because other methods are available to address prosecutorial misconduct that do not interfere with the ability to address the key issues in a trial.

Publication Title

University of Kansas Law Review

Volume

56

Issue

4

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