Limits on Prosecutorial Rhetoric in Commonwealth v. Travis Phillips
One of the key issues raised on appeal in Commonwealth v. Travis Phillips was whether the prosecutor’s statements in the opening and closing arguments improperly inflamed the jury’s emotions, misstated evidence, or reduced the Commonwealth’s burden of proof. The Supreme Judicial Court (SJC) addressed these concerns in detail, providing important guidance on the limits of prosecutorial rhetoric in criminal trials.
This analysis will explore:
The specific prosecutorial statements challenged by Phillips
How the SJC evaluated each claim
The court’s broader principles regarding permissible and impermissible advocacy
Practical takeaways for prosecutors and defense attorneys
1. Challenged Statements by the Prosecutor
Phillips pointed to several statements in the prosecutor’s opening statement and closing argument, arguing that they improperly:
Appealed to the jury’s emotions
Misstated evidence
Reduced the Commonwealth’s burden of proof
Opening Statement Issues
Phillips claimed the prosecutor went too far by:
Describing a gunshot as “crashing through [the victim’s] brain”
Referring to the defendants as a “kill team”
Calling the shooting a “monstrous crime”
Closing Argument Issues
In closing, Phillips argued the prosecutor inflamed the jury’s emotions by:
Stating the victim was “forever thirty-six years old”
Describing the victim’s “crumpled up body” and the “fruitless attempt to save his life”
Calling the shooting a “horrifying incident”
Comparing Phillips and Carleton to “sharks circling their victim”
Contrasting the victim’s “successful loving marriage” with the “cunning, malignant, evil, and destructive” partnership between the defendants
Additionally, Phillips challenged two alleged misstatements of evidence:
The prosecutor claimed the shooter in the video had dreadlocks, but the footage wasn’t clear enough to establish that.
The prosecutor said Carleton took a photograph of Phillips, even though there was no direct evidence of who took the photo—only that it was stored on Carleton’s phone.
Finally, Phillips argued the prosecutor improperly shifted the burden of proof by suggesting defense counsel’s arguments were “throwing spaghetti against a wall” and a “rabbit hole” designed to confuse the jury.
2. The SJC’s Evaluation of These Claims
The SJC carefully analyzed each claim, distinguishing between permissible strong advocacy and improper prosecutorial conduct.
A. Strong Rhetoric vs. Improper Appeals to Emotion
The court reaffirmed the principle that prosecutors are allowed to use strong language and dramatic descriptions—particularly in cases involving extreme atrocity or cruelty.
“Crashing through [the victim’s] brain” → Permissible. The court ruled this was not an emotional appeal but an accurate description of forensic evidence regarding the bullet’s trajectory.
Referring to defendants as a “kill team” → Permissible. The SJC found this to be a fair characterization of the evidence showing that Carleton and Phillips acted in concert to commit the murder.
Calling the crime “monstrous” → Permissible. The court held that strong descriptions of the crime’s brutality are allowed, particularly when extreme atrocity or cruelty is a theory of first-degree murder.
However, one statement went too far:
Contrasting the victim’s “successful, loving marriage” with the “evil, malignant, destructive” relationship of the defendants → Improper. The court held that it is not relevant whether the victim was a “good person” and the defendant a “bad person.” It cautioned prosecutors against painting Manichaean (good vs. evil) narratives that distract from the actual legal issues.
Despite finding this statement improper, the SJC ruled it was not prejudicial because:
The issue in the case was identity (whether Phillips was the shooter), not motive.
The Commonwealth had overwhelming evidence of guilt, including video footage, forensic evidence, and eyewitness testimony.
The judge instructed the jury that opening and closing statements were not evidence, mitigating the potential impact.
B. Prosecutor’s Use of Figurative Language
The court scrutinized the “shark” analogy, in which the prosecutor described the defendants as “circling [the victim] like a shark” before the attack.
The court disapproved of language that “dehumanizes” a defendant (e.g., comparing them to animals).
However, it ruled that this particular analogy was acceptable, given that:
It was a common idiom rather than a direct comparison of the defendant to an animal.
The defendants literally drove in circles around the victim before shooting him, making the analogy factually grounded.
By contrast, cases where courts have reversed convictions for dehumanizing language include:
Calling a defendant a “predator” (Commonwealth v. Sheehan).
Referring to a defendant as an “animal” (Commonwealth v. Collins).
C. Alleged Misstatements of Evidence
Claiming the shooter had dreadlocks → Borderline, but acceptable.
The video was low resolution, but it did appear that the shooter had long hair styled in braids or dreadlocks.
The court ruled that a prosecutor can argue reasonable inferences from the evidence, even if not every detail is crystal clear.
Claiming Carleton “took” the photograph of Phillips → Potentially misleading, but harmless.
The photo was stored on Carleton’s phone, but there was no direct proof that Carleton took it.
The court acknowledged this was imprecise, but ruled that it was a reasonable inference given their close association.
More importantly, this issue was minor compared to the overwhelming evidence of Phillips’ guilt, making it harmless error.
D. Alleged Burden-Shifting
The most serious claim was that the prosecutor’s “spaghetti against the wall” comment improperly shifted the burden of proof to the defense.
Prosecutors may criticize defense strategies, including arguing that the defense is trying to confuse the jury.
However, prosecutors cannot suggest the defendant has a duty to prove innocence.
Here, the court ruled the comments were permissible because:
The prosecutor never said Phillips had to prove anything—only that the defense was trying to distract the jury.
Massachusetts courts have previously allowed similar rhetoric, such as calling a defense argument a “smokescreen” or “designed to confuse.”
The judge properly instructed the jury that the burden of proof always remains with the Commonwealth.
3. Broader Legal Principles on Prosecutorial Rhetoric
The court’s decision reaffirmed several important guidelines for prosecutors:
Prosecutors may use strong, dramatic language, but it must be grounded in the evidence.
Descriptive rhetoric is more permissible in cases involving extreme atrocity or cruelty.
Avoid “good vs. evil” narratives or dehumanizing the defendant.
Avoid absolute statements of fact when the evidence only supports an inference.
While prosecutors may push back against defense arguments, they cannot imply the defense must prove innocence.
Conclusion
The Phillips decision clarifies the boundaries of prosecutorial rhetoric while reaffirming the importance of strong advocacy. While prosecutors are entitled to be forceful, they must remain within the bounds of fairness—ensuring their arguments are grounded in fact, law, and proper trial procedure.
