At times, the trial of a criminal case is a veritable battleground where emotions are extremely high. Sometimes, the government's attorney will say things in their opening and closing statements that are rather incendiary.  On this issue, the courts have consistently concluded that a prosecutor has "considerable leeway" in the arguments presented to the jury in their opening and closing comments. Indeed, it has been said, time and time again, that these arguments may be both "vigorous and forceful". Where, however, the prosecutor’s closing or opening comments are so off-line that they can virtually affect a defendant’s ability to obtain a fair trial the law will intervene. The standard in assessing the propriety of a prosecutor's comments is whether they were "clearly and unmistakably improper" and whether they are capable of "substantially prejudicing defendant’s fundamental right to a jury trial”. In assessing this standard, court’s will look to whether timely objection was placed on the record; whether the remarks were quickly withdrawn; and, whether the court provided sufficient instructions to preserve the issue.

In prior cases, appellate courts have determined that a “call to arms” argument in closing comments is improper.  This type of theme is one where the government requested jury to "send a message" to criminals or signal that the community "will not tolerate distributors and sellers of" drugs/CDS.  On other occasions, appellate courts have reversed cases where a prosecutor attempted to validate the credibility of the witness, or offer an opinion about the defendant's guilt where the suggestion is that he/she knows something beyond the evidence presented at trial.

In a recent case, a prosecutor made repeated references to the “war on drugs”,  both in his opening and closing comments. On appeal, the defendants sought a reversal of his distribution of drugs/CDS conviction because of these comments and pointed the court to a case titled State v. Holmes where a prior appellate panel reversed a conviction because of the prosecutor’s use of the term "war on drugs" in his summation.  This appellate panel, however,  rejected defendant’s contention on the issue.  In analyzing the question, the court first observed that defense attorney did not object to the comments at any time during the trial. Next, it commented on the overwhelming evidence against defendant. Finally, it noted that the "war on drugs" concept was first broached in the text of a jury questionnaire used in the jury selection process.