In Hess v. State the Supreme Court of Alaska held that a prosecutor’s unsupported improper statements during closing arguments constitute plain error if they meet all four prongs of the Adams v. State test. In September 2011, Anchorage police were called to a reported assault of Patricia Hess by her son Christopher. As part of the defense strategy, witnesses testified that Patricia forgot to take her medicine, exaggerated things, and was a danger to herself. The prosecutor during his closing remarks responded to this by arguing that Patricia was being “vilified” as a former victim of sexual assault, and he speculated about her mental health and her family’s motives in testifying against her though evidence at trial had not gone into those subjects. Hess did not object to any of these statements in closing argument. On appeal, Hess argued for the first time that the prosecutor’s closing arguments were improper, and despite his failure to object at trial, he argued the statements constituted plain error. The Supreme Court of Alaska reviewed Hess’s claim using the four-part test for plain error review established in Adams v. State. It explained that all four factors must be met to constitute plain error: “(1) there must be error, and the error must not have been the result of an intelligent waiver or a tactical decision to not object; (2) the error must be obvious, meaning it should be apparent to any competent judge or lawyer; (3) the error must affect substantial rights, meaning that it must pertain to the fundamental fairness of the proceeding; and (4) the error must be prejudicial.” The court elaborated that, on the issue of prejudice, the state has the burden of proving constitutional error was harmless beyond a reasonable doubt, and that for a non-constitutional error the defendant has the burden of proving there is a reasonable probability that it affected the outcome of the proceeding. Ultimately, the court held that all four-prongs of the Adams test were satisfied. It explained that first, Hess did not waive his objection and had not chosen to abstain from objecting for tactical reasons. Second, the prosecutor’s argument lacked evidentiary support and “improperly denigrated the defense lawyer’s trial strategy.” Third, Hess’ fundamental rights were impacted because the prosecutor’s statements created a high potential for unfair prejudice. Fourth, the Court held that there was a reasonable probability that the prosecutor’s statements impacted the trial’s outcome, especially because “prejudicial comments made during closing arguments are more likely to be prejudicial and less likely to be mitigated by curative instructions.” Reversing, the supreme court held that a prosecutor’s unsupported improper statements during closing arguments constitute plain error if they meet all four prongs of the Adams v. State test
 No. S-16466, 2018 WL 6718592 (Alaska Dec. 21, 2018).