(concurring).
[¶58.] If I thought retrying this case would serve only to chasten the prosecutor *356for his uncivil remarks, I might vote to reverse. If I thought the jury probably would have acquitted but for those comments, I would certainly vote to reverse. Yet I am satisfied these disparagements made no difference in the outcome and offended none of the defendant’s substantial rights. Smith told police that his stepdaughter was a liar, that she made up in her mind the rapes she described. However, he fathered a child by her! He denied that also, despite two DNA tests proving his paternity. In the end, he claimed he did not know how the baby could be his. Understandably, the jury found no reasonable doubt of guilt. Let us not overlook that this case was well and fairly tried, except for the transgressions in closing argument.
[¶ 59.] Nonetheless, I regret the invective brought down on Smith. No one should be denounced in court with such dehumanizing words. To preserve humanity, after all, is why we have law. People are more than the crimes they commit. They may act monstrously, but they are not monsters. Surely, though, there are better and more immediate ways for dealing with misconduct in the courtroom than ordering a retrial after appeal. To send this case back for another trial, to put this victim through the entire ordeal again, not because we doubt the verdict, but only to admonish the prosecutor, seems to me insupportable.
[¶ 60.] This is not an instance where the trial judge abridged the process, either by ignoring misbehavior, or worse, by overruling objection to it. In those cases, litigants have no recourse. Here, the judge sustained defense objections and instructed the jury to disregard the prosecutor’s remarks. Perhaps the judge could have gone further and imposed sanctions; presumably, if the problem occurs again, he will. From my standpoint, a trial judge’s on-the-scene supervision is the most effective means for controlling adversarial excess.
[¶ 61.] In cases of flagrant misbehavior, either by the prosecutor or the defense attorney, a judge should intervene without waiting for an objection. Opposing counsel ought not to be saddled with the entire burden of upholding the honor of our system. Under our judicial ethics, judges “shall require order and decorum in proceedings.” Code of Judicial Conduct, Canon 3(b)(3). Not only must they “be patient, dignified and courteous” themselves, judges must also “require similar conduct of lawyers.... ” Canon 3(b)(4). In deciding what action to take — a warning, a special instruction to the jury, a sanction, or a mistrial — the trial judge should consider (a) the bad faith nature of the argument; (b) whether the misconduct was repeated; (c) the argument’s effect on the jury; and (d) whether the “improper argument bolsters an otherwise weak case.” Rosemary Nidiry, Restraining Adversarial Excess in Closing Argument, 96 Colum.L.Rev. 1299, 1330 (1996)(quoting J. Alexander Tanford, Closing Argument Procedure, 10 Am.J.Trial Advoc. 47, 103 (1986)).
[¶ 62.] As an appellate court reviewing the dead record, we face a fearful dilemma. We must choose between competing principles: deterring prosecutorial misconduct or sustaining as final a case of convincing guflt. Here, I choose finality, though I acknowledge the choice is uncomfortable. Either way, the integrity of our justice system is at stake. Yet, each case must be considered on its individual merits. Reviewing courts typically examine: (1) the prejudicial impact of the statements, (2) the effectiveness of any cautionary instruction, and (3) the strength of the evidence against the defendant. See, e.g., United States v. Saenz, 747 F.2d 930, 939 (5thCir.1984) (quoting United States v. McPhee, 731 F.2d 1150, 1152 (5thCir.1984)), cert. denied sub nom. Solis v. United States, 473 U.S. 906, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985); United States v. Rhoden, 453 F.2d 598, 599-600 (5th Cir.1972), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972). Despite the *357nature of the prosecutor’s comments, these factors support affirmance.
[¶ 63.] I hold with Learned Hand’s judicial view that governance is best attained with persuasion, rather than coercion, although sometimes the latter is necessary. Today let the matter end here with the reminder that we who serve the law also serve as examples. Civility is no virtue if it must be enforced like a code. It means more than mere adherence to rules, more than minding the niceties of etiquette. It means, as Justice Anthony Kennedy lately remarked, “respect for the dignity and worth of a fellow human being.”