Commonwealth v. Jenkins: a prosecutor cannot tell the jury you hired a lawyer

On October 1, 2026, the Supreme Court of Pennsylvania held for the first time that it is error for a prosecutor to tell a jury that a defendant hired a lawyer before he was questioned or arrested, because that invites the jury to treat hiring a lawyer as a sign of guilt. The Court then affirmed the conviction anyway, ruling that the error was harmless on that record. The decision sets a clear rule for prosecutors and leaves open how much it will help defendants in practice.

By John A. Julian, Esq. Updated October 1, 2026.

The short version

• The rule. Telling the finder of fact that a defendant sought the advice or assistance of counsel before police questioning or arrest is error. It affects the Fourteenth Amendment due process right to a fair trial, because the information is irrelevant to guilt and invites an unwarranted inference of guilt.
• The limit. The error is a trial error, not a structural error. It does not require a new trial automatically. It is reviewed for harmlessness beyond a reasonable doubt.
• The result. The error was harmless here: the trial judge gave a prompt curative instruction, defense counsel had objected immediately, and the properly admitted, uncontradicted evidence of guilt was overwhelming. The Superior Court's order affirming the conviction was affirmed.
• The warning. The Court "explicitly" cautioned prosecutors that this line of argument "should be scrupulously avoided."

What happened at trial

Ronald Jenkins, Jr. was convicted by a Dauphin County jury of rape of an unconscious victim and kidnapping to facilitate a felony, and was sentenced to 13 to 30 years of imprisonment followed by 5 years of probation. Before he was charged, he spoke twice with a detective by phone about the investigation. The second call, two months after the first, took place after he had retained a lawyer, and the lawyer took part in it. In both calls he denied wrongdoing. He did not testify at trial.

In closing argument the prosecutor told the jury that Jenkins "gets a lawyer," that he was not "some schlep" who spoke to police "without the benefit of having someone there to protect your rights," and that when he "has the time to come clean," he "lies." Defense counsel objected and moved for a mistrial. The trial court denied the mistrial but, at defense counsel's request, gave a curative instruction. It told the jury that using counsel puts no burden on the defendant to speak at any other point, that "the law prefers" statements be given with counsel, that any reasonable person would be expected to use an attorney, and that the jury should "take no adverse inference from his using counsel."

In the Superior Court, a divided panel affirmed in an unpublished memorandum. One judge agreed the remarks were improper but would have held that no jury instruction could cure them.

What the Supreme Court held

Chief Justice Todd wrote the majority opinion in Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), joined by Justices Dougherty, Wecht, Mundy, and Brobson. The Court decided three things.

1. It is error to tell the jury a defendant hired a lawyer

The Court called the question one of first impression in Pennsylvania and adopted the view of the federal and state courts that had already ruled this way. Seeking legal advice does not show consciousness of guilt: a person may believe himself guilty, innocent, or simply unsure of his exposure. The Court said such evidence is "wholly irrelevant" to guilt and that suggesting otherwise "disparages the critical role attorneys play" in the justice system. Because the jury could draw an "unwarranted and damaging inference," the Court held that the comment impacts the due process right to a fair trial.

The Court also rejected the Commonwealth's argument that the prosecutor was only pointing out a lie that the later DNA evidence exposed. The Commonwealth was free to argue that the denial was false. But the reference to counsel was "wholly unnecessary" to that point, and the prosecutor tied the decision to lie to the lawyer's presence, which suggested the decision was made "with the aid and/or blessing of counsel."

The ruling rests on the Fourteenth Amendment, not the Sixth. Jenkins conceded that his Sixth Amendment right to counsel had not yet attached, because he had not been charged when he consulted his lawyer. He raised no separate claim under Article I, Section 9 of the Pennsylvania Constitution, and the Court did not analyze one.

2. The error is not structural

Jenkins argued the error fit all three categories the U.S. Supreme Court described in Weaver v. Massachusetts, 582 U.S. 286 (2017): a right that protects an interest other than avoiding wrongful conviction, effects that are too hard to measure, and an error that always produces fundamental unfairness. The Court disagreed on each. The fair-trial right at issue exists chiefly to prevent erroneous convictions. The comment was a discrete, one-time event at the end of a three-day trial whose effect can be assessed against the rest of the record. And an error of this kind does not invariably make a trial unfair, because a curative instruction can ameliorate it. The Court noted that neither it nor the U.S. Supreme Court has ever treated improper prosecutorial argument as structural error.

3. The error was harmless beyond a reasonable doubt

Applying the standard from Commonwealth v. Story and later cases, the Court looked only at uncontradicted evidence and found it overwhelming: surveillance video of Jenkins carrying the limp victim into his motel room, her injuries and the damaged apartment wall, and DNA evidence. Against that, it found the prejudice slight because Jenkins objected at once, the trial judge gave a prompt and specific curative instruction, and juries are presumed to follow instructions. In a footnote, the Court pointed out that in the out-of-state and federal cases that ordered new trials, there was either no curative instruction or an inadequate one, or no timely objection.

The separate opinions

No Justice disagreed that the prosecutor's remarks were improper. The disagreement was about remedy.

• Justice Wecht (concurring) joined the majority but wrote that such argument is "manifestly improper" and "should be condemned in the strongest terms." He acknowledged that harmless-error review can weaken deterrence ("a rule that frequently is broken without consequence soon becomes no rule at all," quoting his earlier dissent), agreed with Justice Mundy that attorney discipline is another tool, and wrote that penalizing a consultation with a lawyer before charging "may not be a 'Sixth Amendment' right, but it is an important one all the same."
• Justice Mundy (concurring, joined by Justice Brobson) agreed the error is not structural. She treated it as the counterpart of the pre-arrest silence error reviewed for harmlessness in Commonwealth v. Molina, and noted that the Court has other ways to discourage prosecutorial misconduct through its supervision of the bar's disciplinary system.
• Justice McCaffery (concurring and dissenting, joined by Justice Donohue) agreed the remarks were improper but would have held the error structural. In his view the right to retain and consult counsel protects interests beyond avoiding a wrongful conviction, including self-determination and the integrity of the justice system, and a harmless-error rule will let prosecutors "gamble" that improper attacks on defense counsel will be excused in hindsight. He wrote that the result will "unavoidably discourage" people from consulting lawyers.

Two Justices, then, would have gone further than the majority on remedy, and two of the five joining the majority wrote separately to stress deterrence or discipline. How the Court treats the next case, one with a weaker curative instruction or closer evidence, is where this decision will be tested.

What this means for a direct appeal

If a prosecutor referred to the defendant's retention of a lawyer in a trial that ended recently enough for a direct appeal, Jenkins supplies the controlling rule that the comment was error. The appeal will turn on the factors the Court applied: whether there was a timely objection, whether the trial court gave a curative instruction that addressed the comment directly, how often and how pointedly the prosecutor made the point, and how strong the properly admitted evidence was without it. A mistrial motion and a request for a specific instruction, as made in Jenkins, preserved the issue.

What this means for a PCRA petition

This was a direct appeal, not a PCRA case, and the Court did not address post-conviction review. For someone whose conviction is already final, the issue would arrive in a PCRA petition only in a different form. Where trial counsel did not object, the claim cannot be raised directly. It is usually raised as ineffective assistance of counsel, which requires showing, among other things, prejudice (see our guide to ineffective assistance of counsel in Pennsylvania). The Court did not decide how Jenkins bears on that standard, and each case turns on its own record. A petition must also be timely under the one-year deadline. A new Pennsylvania rule of this kind does not by itself reopen a final conviction, and whether a later court would apply it to a conviction already final is a separate question the decision does not answer.

If you believe a prosecutor's closing argument crossed this line in your trial or a family member's, the trial transcript is the starting point. The closing argument, any objection, and any instruction are all in it.

Common questions

Can a prosecutor tell the jury that I hired a lawyer?

Not for the purpose of suggesting guilt. In Commonwealth v. Jenkins (Pa. 2026), the Supreme Court of Pennsylvania held that it is error for a prosecutor to inform the finder of fact that a defendant sought the advice or assistance of counsel before police questioning or arrest for the offense being tried.

Did Jenkins get a new trial?

No. The Court held the error was harmless beyond a reasonable doubt because the trial court gave a prompt curative instruction after a timely objection and the uncontradicted evidence of guilt was overwhelming. The Superior Court's order affirming the conviction was affirmed.

Is a prosecutor's comment about hiring a lawyer a structural error?

No. The Court held it is a trial error subject to harmless-error review, not a structural error requiring an automatic new trial. Justice McCaffery, joined by Justice Donohue, would have held it structural.

Does Jenkins apply to someone who already lost a direct appeal?

The decision came on direct appeal and does not address post-conviction relief. A claim in a PCRA petition would generally be raised as ineffective assistance of counsel, would have to be timely under the PCRA, and would depend on the trial record. A case review can tell you whether the transcript supports a claim.