State v. Lapham, 377 A.2d 249, 135 Vt. 393 (Vt. 1977)
We believe that a prosecutor has a duty to present the State's case with earnestness and vigor, using every legitimate means to secure a just conviction, however, there is also a corresponding duty to refrain from improper methods calculated to produce a wrongful conviction and to guard against conduct unintentionally trespassing the bounds of propriety. The longstanding rule in Vermont is that counsel should confine argument to the evidence of the case and inferences properly drawn from it, and must avoid appealing to the prejudice of the jury. Hall v. Fletcher, 100 Vt. 210, 213, [135 Vt. 407] 136 A. 388 (1927). Comments of counsel shall not be inflammatory, nor depart from the evidence, nor represent an injection into the case of the prosecutor's personal belief as to the guilt of the accused. State v. Jackson, 127 Vt. 237, 246 A.2d 829 (1968). The burden of proving prejudice is on the respondent. State v. Parker, 104 Vt. 494, 500, 162 A. 696 (1932). Whether an improper argument is of a nature which requires a reversal depends on the attending circumstances, and there is usually little profit in comparing one case with another; prejudice must affirmatively appear. State v. Frotten, 115 Vt. 146, 147, 53 A.2d 52 (1947). However, certain circumstances may command themselves to aid in this evaluation, e. g., the treatment of the objection or exception and the jury instructions. State v. Gravelle, 117 Vt. 238, 246, 89 A.2d 111 (1952). Overall, were the rights of the party injuriously affected? Duchaine v. Ray, 110 Vt. 313, 322, 6 A.2d 28 (1939).
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