BURKE, Chief Justice.
[¶1] John Wallace McGinn was found guilty by a jury of domestic battery and possession of a weapon with intent to threaten. Mr. McGinn testified at trial, and, over the objections of defense counsel, the prosecutor asked him a series of questions in which she repeated statements made by his daughter and asked, "was she lying?" Prior to trial, at a hearing on the State's Rule 404(b) notice, the district court ruled that evidence regarding prior discharge of a gun would be admissible. Mr. McGinn appeals, contending the "was she lying" questions constitute prosecutorial misconduct, and that the trial court abused its discretion when it allowed the prior discharge evidence. We reverse.
[¶3] Mr. McGinn and his wife, Shari Swenson, lived in Cheyenne, Wyoming, with their eight-year-old daughter, K. Ms. Swenson worked long hours, and Mr. McGinn was a stay-at-home dad. On the day after Thanksgiving 2012, Mr. McGinn was at home with K and he instructed her to fold the laundry. K balked, and swung at him, and Mr. McGinn testified that he gave her a "swat on her bottom, not very hard, and I sen[t] her to her room."
[¶4] Ms. Swenson got home later that evening and found K in her playroom, where she reported that she had been hurt by Mr. McGinn. Ms. Swenson confronted Mr. McGinn, and the two embarked upon a fight that lasted several hours. At some point, the fight ceased being merely verbal. Ms. Swenson testified:
[¶5] Ms. Swenson heard Mr. McGinn go into the bedroom and open the nightstand drawer where he kept his handgun. He came down the hall with the gun in his hand, waving it around, and said, "I'm not afraid to use this on you or anybody else. I'm not afraid to go to prison. I'm not afraid of any of that." Then Mr. McGinn went down to the basement, and when he came back up Ms. Swenson did not see the gun again. Meanwhile, Ms. Swenson packed some things for herself and K. The two got in her truck and left. The next day Ms. Swenson reported the incident to the Cheyenne police, who took their statements and photographs. Photos showed a lump over Ms. Swenson's left eye and some swelling around K's right eye and bruising on her back. Mr. McGinn was charged with child abuse, domestic battery, and possession of a weapon with intent to threaten.
[¶6] At trial, Ms. Swenson testified to previous incidents involving the gun. In spring 2012, Mr. McGinn was cleaning the gun and told Ms. Swenson he wanted to show her something. The gun discharged and the bullet went through the bathroom wall and into the foundation of the neighbors' house. Although Ms. Swenson believed at the time that the discharge was an accident, at trial she testified:
[¶7] Ms. Swenson also testified to approximately five other occasions during which she locked herself in K's room and could hear Mr. McGinn outside the door with the gun. "[H]e would cock it, load it and unload it, so I could hear it." On one of those occasions she saw Mr. McGinn with the gun in his hands.
[¶8] Mr. McGinn testified at trial. His testimony regarding the laundry incident differed significantly from K's. On cross-examination, the prosecutor referred to specific statements K had made in her forensic interview and asked Mr. McGinn whether K was lying.
[¶9] Defense counsel objected, noting that his client should not have to call his daughter a liar to explain what happened. The district court overruled the objection, and the same pattern of questions continued. The prosecutor asked approximately 20 "was she lying" questions. Then, upon defense counsel's renewed objection, the district court instructed the jury:
[¶ 10] After that instruction, the prosecutor changed her questions regarding K's version to "Is that true or not true?" At the close of the testimony, defense counsel moved for a mistrial on the basis of the "was she lying" questions. The district court denied the motion, explaining that the tactic was necessary in this case, where Mr. McGinn "forcefully" denied the facts testified to by his wife and daughter.
[¶11] The district court called a recess after the prosecutor's closing and informed the parties that it had researched the propriety of the "was she lying" questions and concluded that "[s]uch questions are improper and the use of them amounts to misconduct." Defense counsel then renewed his motion for a mistrial, which the court denied. When the jury returned, the court advised:
[¶12] The jury acquitted Mr. McGinn of felony child abuse and found him guilty of the two other charges. He was sentenced to four months for the battery conviction and four to five years for possession of a weapon with intent to threaten, suspended in favor of five years of probation. He timely appealed.
[¶13] We review allegations of prosecutorial misconduct
White v. State, 2003 WY 163, ¶ 7, 80 P.3d 642, 646 (Wyo.2003) (quoting Earll v. State, 2001 WY 66, ¶ 9, 29 P.3d 787, 789 (Wyo. 2001)). "To demonstrate harmful error, the defendant must show prejudice under `circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.'" Phillips v. State, 2007 WY 25, ¶ 8, 151 P.3d 1131, 1134 (Wyo.2007) (quoting Condra v. State, 2004 WY 131, ¶ 7, 100 P.3d 386, 389 (Wyo.2004)).
[¶14] We have held repeatedly that "[a] witness may not comment on the truthfulness or veracity of another witness." Barnes v. State, 2011 WY 62, ¶ 11, 249 P.3d 726, 730 (Wyo.2011); Schreibvogel v. State, 2010 WY 45, ¶ 41, 228 P.3d 874, 888 (Wyo. 2010); Huff v. State, 992 P.2d 1071, 1079 (Wyo.1999). It is the province of the jury to weigh the credibility of witnesses. Beaugureau v. State, 2002 WY 160, ¶ 17, 56 P.3d 626, 636 (Wyo.2002).
[¶15] It is "misconduct for the prosecutor to cross-examine a defendant using the `lying' or `mistaken' technique (i.e., well, then if `so-and-so' said `such-and-such,' was he `mistaken' or `lying?')." Barnes, ¶ 9, 249 P.3d at 728 (quoting Beaugureau, ¶ 17, 56 P.3d at 635-36). These questions are improper because they "require a defendant to comment on another witness' veracity . . . invade the province of the jury, create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witnesses lied, and distort the state's burden of proof." Barnes, ¶ 9, 249 P.3d at 729. See also Proffit v. State, 2008 WY 114, ¶ 15, 193 P.3d 228, 235 (Wyo.2008); Talley v. State, 2007 WY 37, ¶ 11, 153 P.3d 256, 260 (Wyo.2007); Jensen v. State, 2005 WY 85, ¶ 20, 116 P.3d 1088, 1096 (Wyo.2005). "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Beaugureau, ¶ 16, 56 P.3d at 634 (quoting Stephens v. State, 774 P.2d 60, 63 (Wyo.1989), overruled on other grounds by Large v. State, 2008 WY 22, ¶ 30, 177 P.3d 807, 816 (Wyo.2008)).
[¶16] The State concedes that the questioning was improper. It contends, however, that the error was harmless. To determine whether prosecutorial conduct was harmless, this Court balances the following factors: "1) the severity and pervasiveness of the misconduct; 2) the significance of the
[¶17] First, the misconduct was certainly severe and pervasive. The prosecutor asked some version of the "was she lying" question more than twenty times
[¶18] Second, the State argues that the significance of the misconduct to the central issue in the case is a factor that should weigh in its favor, because the primary focus of the "was she lying" questions was K's testimony, which was relevant to the child abuse charge of which Mr. McGinn was acquitted. We note that the jury's decision on the child abuse charge was not necessarily based on a credibility determination, but may have resulted from a failure of proof of the "inflicted physical injury" element, as defined in Wyo. Stat. Ann. § 14-3-202(a)(ii)(B) (LexisNexis 2015) ("any harm to a child including but not limited to disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition").
[¶ 19] The State's argument overlooks the fact that the real damage caused by the "was she lying" questions is to make the defendant look bad, especially when the person who is accused of lying is as sympathetic as K. In Barnes, we recognized that the "predominant, if not sole, purpose of such questioning is simply to make the defendant look bad," and we quoted with favor the Iowa Supreme Court's statement that:
Barnes, ¶ 9, 249 P.3d at 729 (quoting State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003)).
[¶ 20] This case, as the State concedes, "depended on which witness was credible to the jury." As the trial court noted: "There is some physical evidence, although the impact of that physical evidence being the photographs is disputed. But the overwhelming majority of the evidence that Mr. McGinn committed these crimes is based upon the testimony of his daughter and his wife." If Mr. McGinn's credibility was diminished by the "was she lying" questions, it was diminished for all purposes. The effect of making Mr. McGinn look bad could not be confined to the particular charge about which he was being questioned, but necessarily injected prejudice into the jury's consideration of all of the charges. We therefore find the second factor weighs against the State.
[¶ 21] Third, we consider the strength of the State's evidence. As mentioned above, there was very little physical evidence and the decision rested on the witnesses' credibility. The district court, in explaining its reasons for allowing the "was she lying" questions, included its belief that "the state of the evidence is such that there is not much else to support the State's claims other than the testimony of Ms. Swenson and [K]." Under these circumstances, this factor also weighs against the State.
[¶22] Fourth, we consider whether the district court's curative instructions were sufficient to cure the error. The district court overruled defense counsel's objections to the first series of the "was she lying" questions. After several more of those questions and a renewed objection, the court sustained the objection, and then gave an instruction that
[¶ 23] The instruction did not address the fundamental impropriety of the "was she lying" questions and did not cure the error. The prosecutor then proceeded to ask further questions in the same vein and again referred to the lying testimony in her closing. Only after the prosecution's closing did the district court inform the jury that those questions were improper and instruct them to disregard those questions.
[¶24] The State contends that the judge's instruction, along with the standard jury instructions that informed the jury that it is the province of the jury to make determinations of credibility, to determine the issues of fact, and to disregard matters that the judge orders to be stricken, is adequate to cure the error. We disagree. The pervasive nature of the objectionable questions and the lapse in time between the questions and the curative instruction compel the conclusion that the damage done could not be undone. These facts are in stark contrast to Beaugureau, in which the prosecutor asked three improper "was s/he lying" questions, and each time defense counsel's objection was immediately sustained by the trial court. Id., ¶ 15, 56 P.3d at 633. Further, in this case, the instruction to jurors to disregard matters stricken is of limited utility when the damage was not as to any fact, but rather was in the impression created of a defendant who repeatedly accused his young daughter of lying.
[¶25] Finally, we look to the extent to which the defendant invited the conduct. It is difficult to conceive of a situation in which prosecutorial misconduct would be justified by any action taken by the defendant; however, we need only decide here that Mr. McGinn's assertion of a different version of events than that testified to by Ms. Swenson and K is not a sufficient basis for finding that he invited such questions. Different stories requiring a jury to determine the credibility of witnesses are the norm, and do not justify use of "was she lying" questions.
[¶26] In sum, use of the improper questions was pervasive; it was intended to undermine the credibility of the defendant in a case where credibility was the central issue. The State's case was not strong and efforts to cure the error came too late and were ineffective. Appellant did not invite the error and defense counsel interposed timely objections to the improper questions. Based upon the foregoing, we must conclude that the error was prejudicial. There is a reasonable possibility that, absent the error caused by the "was she lying" questions, the verdict might have been more favorable to Mr. McGinn. Mr. McGinn's conviction must be reversed.
[¶ 27] Before leaving the subject of prosecutorial misconduct, we find it worthwhile to comment on Appellant's request that we depart from our precedent requiring an appellant to establish that he was prejudiced by the misconduct. He contends that we should require the State to establish a lack of prejudice when prosecutorial misconduct has occurred. Because we conclude that Appellant would have prevailed under either standard, resolution of this issue does not impact the outcome of the present case. Nonetheless, in the interest of providing guidance for future cases, it seems prudent to comment briefly on the merits of the approach urged by Appellant.
[¶28] Appellant's suggestion that we depart from our precedent implicates the doctrine of stare decisis. Under that doctrine, departure should occur only upon due reflection and only if we are convinced that it is necessary to "vindicate plain, obvious principles of law and remedy continued injustice." Borns v. Voss, 2003 WY 74, ¶ 26, 70 P.3d 262, 271 (Wyo.2003). In other words, we should depart from our precedent only when there is good reason to do so. Appellant has failed to convince us that departure from our precedent is warranted.
[¶29] Appellant relies principally upon Justice Voigt's concurring opinion in Schreibvogel, ¶ 52, 228 P.3d at 890. The sole justification for shifting the burden, as suggested in that opinion, was the possibility of deterrence. According to Justice Voigt, "[p]erhaps the State would pay attention to the law if it bore the burden of proof as to the lack of prejudice." Id. If changing the burden of
[¶30] Our precedent unequivocally prohibits use of "were they lying" questions by a prosecutor. We have previously reversed convictions for prosecutorial misconduct identical to the conduct at issue here. If the threat of reversal will not deter the misconduct, shifting the burden of establishing prejudice on appeal is unlikely to have any effect on this behavior. Shifting the burden cannot dissuade the prosecutor who is unaware of our precedent. Shifting the burden is also unlikely to deter the prosecutor who knows such questions are improper but chooses to ask them anyway. We are left unconvinced that changing the burden would have any impact on prosecutorial behavior.
[¶31] It should also be noted that Appellant is seeking a special harmless error rule only for prosecutorial misconduct. He is not claiming that we should change the burden of establishing prejudice in other cases involving a harmless error analysis. He has not cited to any authority from any jurisdiction that supports his position.
[¶32] In general, there are two approaches to addressing the element of prejudice in a nonconstitutional harmless error analysis.
[¶33] Under the approach urged by Appellant, the burden of establishing prejudice would remain with Appellant if the error was classified as "evidentiary." If deemed to be prosecutorial misconduct, the burden would be on the State to establish a lack of prejudice. However, not every "evidentiary error which favors the State would be considered prosecutorial misconduct." Craft, ¶ 13, 298 P.3d at 829.
[¶34] Although we need not address any further issues, because it is likely to arise again on remand, we will comment on the admissibility of uncharged misconduct evidence. When there has been an objection, this Court reviews challenges to the admission of evidence for an abuse of discretion. Cardenas v. State, 2014 WY 92, ¶ 7, 330 P.3d 808, 810 (Wyo.2014). A trial court's ruling on the admissibility of uncharged misconduct evidence is entitled to considerable deference, "`and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal.'" Id. (quoting Gonzalez-Ochoa v. State, 2014 WY 14, ¶ 11, 317 P.3d 599, 603 (Wyo.2014)). "A trial court abuses its discretion when it could not have reasonably concluded as it did." Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202,
[¶35] In Gleason, we outlined the "mandatory procedure" first set forth in Vigil v. State, 926 P.2d 351, 357 (Wyo.1996), for testing the admissibility of uncharged misconduct evidence:
Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo.2002). We further noted that the test is not to be used in appellate review; "rather, it is intended to be conducted by the trial court." Id.
[¶36] Mr. McGinn filed Defendant's Motion to Require Specific Statement of 404(b) Evidence and Demand for Hearing on November 13, 2013.
The State's pleading also included an extensive "Proper Purpose Analysis" in support of the admission of 404(b) evidence.
[¶37] The district court held a motion hearing December 16, 2013, at which a number of issues were discussed, including the 404(b) issue pertaining to the spring 2012 discharge. At the hearing, the district court stated:
[¶ 38] The Order that was issued January 15, 2014, contained the following:
[¶39] At trial, Ms. Swenson testified about the spring 2012 discharge without further objection. The district court's order identifies the purpose for admission of the 2012 discharge evidence, finding that it "relates to the issue of intent." We can also glean from the hearing transcript that the district court recognized that the evidence was relevant, and that the evidence had a prejudicial effect.
[¶40] We reverse and remand to the district court for further proceedings in conformance with this opinion.
FOX, Justice, specially concurring, in which KITE, Justice (Ret.), joins.
[¶41] I concur in the result, but I write separately because I believe the burden of demonstrating harmless error from prosecutorial misconduct should be on the beneficiary of the error.
[¶42] The United States Supreme Court has imposed the burden to demonstrate harmless error on the prosecution for many years. See, e.g., Kotteakos v. United States, 328 U.S. 750, 760, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557 (1946) ("If the error is of such a character that its natural effect is to prejudice a litigant's substantial rights, the burden of sustaining a verdict will . . . rest upon the one who claims under it."). "[L]ater cases have made it clear that, unlike plain error analysis that places on the defendant the burden of demonstrating prejudice, harmless error requires the prosecutor to disprove prejudice." 3B Charles A. Wright et al., Federal Practice and Procedure § 854, at 506 (4th ed.2013).
[¶43] Federal courts distinguish between the burden of showing harmless error under F.R.Cr.P. 52(a), which is imposed on the government, and the burden of showing prejudice occurred under the F.R.Cr.P. 52(b)
[¶44] Several state courts also allocate the burden to the prosecution to show that nonconstitutional error was harmless. See, e.g., State v. Dolloff, 58 A.3d 1032, 1043 (Me. 2012) (The State must persuade us that "it is highly probable that the jury's determination of guilt was unaffected by the prosecutor's comments."); State v. Akins, 298 Kan. 592, 315 P.3d 868, 882 (2014) ("The State bears the burden of proving the misconduct was harmless error."); State v. Hill, 801 N.W.2d 646, 654 (Minn.2011) ("[T]he State bears the burden of persuasion on claims of prosecutorial misconduct to demonstrate that `the misconduct did not affect substantial rights.'" (citation omitted)); Guzman v. State, 868 So.2d 498, 507 (Fla.2003) ("[O]nce a defendant has established that the prosecutor knowingly presented false testimony at trial, the State bears the burden to show that the false evidence was not material[.]").
[¶45] Justice Voigt (then Chief Justice) suggested this approach in his special concurrence in Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo.2010):
Id. at ¶¶ 52, 54, 228 P.3d at 890-91 (Voigt, C.J., specially concurring) (citations omitted). The Court again signaled its interest in shifting the burden in such cases in Barnes v. State, 2011 WY 62, ¶ 12, 249 P.3d 726, 730-31 (Wyo.2011).
[¶46] This Court has previously allocated the burden to the State of showing harmless error beyond a reasonable doubt in cases of constitutional error. "The Chapman standard requires the appellate court to be convinced beyond a reasonable doubt no reasonable possibility exists that the error contributed to the jury's determination." Vigil v. State, 2004 WY 110, ¶ 21, 98 P.3d 172, 180 (Wyo.2004) (citing Chapman v. California, 386 U.S. 18, 23-26, 87 S.Ct. 824, 827-29, 17 L.Ed.2d 705 (1967)). There are two different standards of review for harmlessness, "one for nonconstitutional errors and one for errors of constitutional dimension." United States v. Powell, 334 F.3d 42, 45 (D.C.Cir.2003). Under federal law, "[u]nder both standards, the burden is on the government to demonstrate that the error was harmless." United States v. Whitmore, 359 F.3d 609, 622 (D.C.Cir.2004).
[¶47] I would allocate the burden to the State to demonstrate the error was harmless in cases of prosecutorial misconduct involving a nonconstitutional error, although I would not require it to make that showing beyond a reasonable doubt. Nonconstitutional errors are harmless "unless the error had a substantial influence on the outcome of the proceeding or leaves one in grave doubt as to whether it had such effect." United States v. Thompson, 287 F.3d 1244, 1253 (10th Cir. 2002) (citing United States v. Rivera, 900 F.2d 1462,
[¶48] There is no dispute in this case that "was she lying" questions constituted prosecutorial misconduct. Our precedent is clear on that point, and the State concedes it. Barnes, 2011 WY 62, ¶ 9, 249 P.3d at 728-29 (It is "misconduct for the prosecutor to cross-examine a defendant using the `lying' or `mistaken' technique (i.e., well, then if `so-and-so' said `such-and-such,' was he `mistaken' or `lying?')") (quoting Beaugureau v. State, 2002 WY 160, ¶ 17, 56 P.3d 626, 636 (Wyo.2002)). See also ABA Standards for Criminal Justice Prosecution Function and Defense Function, Standard 3-5.6(b), at 101 (3d ed.1993):
[¶49] "Prosecutorial misconduct claims are not intended to provide an avenue for tactical sandbagging of the trial courts, but rather, to address gross prosecutorial improprieties that have deprived a criminal defendant of his or her right to a fair trial." 21 Am. Jur. 2d Prosecutorial Misconduct § 429, at 545 (2008). We have defined "prosecutorial misconduct" as "[a] prosecutor's improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo.2013) (quoting Black's Law Dictionary 1237 (7th ed.1999)). We also affirmed that not every "evidentiary error which favors the State would be considered prosecutorial misconduct." Id.
[¶50] Other courts have recognized that prosecutorial misconduct is something more than an evidentiary error: United States v. Walton, No. ARMY 20011151, 2007 WL 7264761, at *1 (Army Ct.Crim.App. May 3, 2007) ("Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon." (citation omitted)); State v. Ramey, 721 N.W.2d 294, 299-300 (Minn.2006) ("conduct the prosecutor should know is improper"); State v. Inkelaar, 293 Kan. 414, 264 P.3d 81, 93 (2011) (Appellate court first determines if prosecutor's questions were proper, then "reviews (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.").
[¶51] There is a solid body of Wyoming case law establishing the type of conduct that constitutes prosecutorial misconduct, which typically falls into a handful of types of conduct:
Seymore v. State, 2007 WY 32, ¶ 20, 152 P.3d 401, 410 (Wyo.2007), abrogated by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo.2008). It is prosecutorial misconduct: to vouch for the credibility of witnesses, Fennell v. State, 2015 WY 67, ¶¶31-44, 350 P.3d 710, 719-26 (Wyo.2015); to ask the jury to convict a defendant for any reason other than the evidence before it, Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000); to comment upon an accused's silence "when used to the state's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt," Abeyta v. State, 2003 WY 136, ¶ 11, 78 P.3d 664, 667 (Wyo. 2003) (citation omitted); to suggest that he has independent knowledge of facts that could not be presented to the jury, Talley v. State, 2007 WY 37, ¶ 21, 153 P.3d 256, 263 (Wyo.2007); to use voir dire to prove the elements of the case or to invite the jury to emotionally sympathize with the victim, Law v. State, 2004 WY 111, ¶ 34, 98 P.3d 181, 194 (Wyo.2004); to "launch personal attacks against defense counsel to inflame the passions and prejudices of the jury," Lafond v. State, 2004 WY 51, ¶ 39, 89 P.3d 324, 336-37 (Wyo.2004) (citation omitted); to ask the jury to place themselves in the position of the victim, Trujillo v. State, 2002 WY 51, ¶ 13, 44 P.3d 22, 27 (Wyo.2002); to intentionally misstate the evidence, Bustos v. State, 2008 WY 37, ¶ 9, 180 P.3d 904, 907 (Wyo.2008); to suggest the jury should consider the defendant's fate rather than focusing on its fact finding responsibility, Haynes v. State, 2008 WY 75, ¶¶ 26-28, 186 P.3d 1204, 1210-11 (Wyo.2008); and to ask "was she lying" questions (see majority opinion at ¶ 17).
[¶52] While this list is not exhaustive, what we can conclude is that the type of conduct we have found to constitute prosecutorial misconduct all falls into the general category of conduct that the prosecutor knew or should have known would deprive the defendant of the right to a fair trial; and we have had no difficulties in distinguishing between such clearly egregious prosecutorial misconduct and mere evidentiary errors.
[¶53] I believe the courts are up to the task of identifying prosecutorial misconduct, and that our objective of providing fair trials is best served in cases of prosecutorial misconduct by imposing the burden on the State to demonstrate the error was harmless. I recognize the difficulty for the prosecutor in this case, who proceeded to ask the improper questions after the district court had overruled defense counsel's objections and seemingly authorized the misconduct. However, it is the prosecutor's duty to "seek justice, not merely to convict." ABA Standards for Criminal Justice Prosecution Function and Defense Function, Standard 3-1.2(c), at 4 (3d ed.1993). As the United States Supreme Court has noted with respect to the United States Attorney's prosecutorial duty:
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). See also Lawson v. State, 2010 WY 145, ¶ 20, 242 P.3d 993, 1000 (Wyo.2010) ("The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure `that justice shall be done' in all criminal prosecutions.") (quoting Cone v. Bell, 556 U.S. 449, 451, 129 S.Ct. 1769, 1772, 173 L.Ed.2d 701 (2009)); Beaugureau, 2002 WY 160, ¶ 16, 56 P.3d at 634 ("Society wins not only when the
[¶54] If we held that misconduct could be cleansed by the trial court's erroneous approval, we would be sending the message that misconduct is acceptable if the prosecutor can get away with it. That would be the wrong message. The prosecutor's duty is to seek justice and to win trials only when justice is served. Shifting the burden of demonstrating lack of prejudice to the State in cases of prosecutorial misconduct where appropriate objection has been made is consistent with that duty.
BURKE, Chief Justice, delivers the opinion of the Court; FOX, Justice, files a specially concurring opinion, in which KITE, Justice (Ret.), joins.