Prosecution’s Use of “Dixie” Lyrics in Rebuttal Closing Leads to Reversal

State v. Kirk (2014)

The Court of Appeals of Idaho has reversed a sexual assault of a minor conviction after the prosecutor invoked racial prejudice into the case by quoting the song “Dixie” in her rebuttal closing argument.

In Kirk, the defendant was charged with sexual battery of a minor after an incident involving two girls, ages seventeen and thirteen. In the rebuttal closing argument, the prosecutor used lyrics from the song “Dixie” which included the words “look away.” The prosecutor argued that the defense counsel was asking the jury to “look away from the two eyewitnesses” and to “look away” from other evidence. The jury ultimately convicted, and the defendant appealed, arguing that the prosecution’s use of these lyrics injected race prejudicial into the case, as the defendant is African American and the minors are both Caucasian.

On appeal, the court considered whether the prosecutor’s rebuttal closing argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

“The Constitution prohibits racially biased prosecutorial arguments.” Such arguments violate the due process and equal protection rights of criminal defendants.

The appellate court explained the song “Dixie” was an anthem of the Confederacy, and had strong racial overtones. The State argued that the prosecutor did not intend to invoke any racial prejudice, but the court responded that “an invocation of race…even if subtle and oblique, may be violative of due process or equal protection.”

As such, the court found that the prosecutor’s rebuttal violated the defendant’s constitutional rights to due process and equal protection. It reasoned that a prosecutor invoking racial overtones undermines the judicial process, and as such, the fundamental error standard may be lowered when racial prejudice is injected into a case.

Here, the court considered the sensitivity of the accusations—alleged sexual molestation of minors—and found the risk of prejudice was magnified. It reasoned that although the State had a “strong case,” the prosecution’s use of racial overtones could have reasonably affected the trial. The court vacated the conviction and remanded for new trial.