11.6 Argument in Summation

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.6 ARGUMENT IN SUMMATION

11.601 In General. The Sixth Amendment right to counsel requires that the court allow the defense the opportunity to make a summation of the evidence before a rendition of judgment, even in a trial without a jury. ³³⁷

Following or just before the instructions to the jury, counsel may request a brief recess for final preparation of their arguments. The prosecution argues first, followed by the defense. After the defense presents its argument, the prosecution has the right of rebuttal. Although the prosecution generally is not permitted to raise any new matter on rebuttal, the trial judge has broad discretion in supervising closing arguments. ³³⁸ If the prosecution does inject new material, the defense has a right to reply to this new matter

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in surrebuttal. Otherwise, the defense has no right to surrebuttal. Now that guilt or innocence determinations are separated from the penalty phase, counsel will be allowed closing argument again after the proceedings at the penalty phase. ³³⁹

11.602 Limitations. Arguments must be based on evidence before the court. ³⁴⁰ If counsel wishes to argue a particular point, he or she should see to it that the evidence in support of that point is presented to the court. The expression of a personal opinion as to the credibility of a witness or the weight of the evidence is improper, and the propriety of such argument is not affected by a prefatory admonition that whatever counsel says is not evidence. ³⁴¹

The defendant's conviction may be overturned on the basis of the prosecution's prejudicial closing argument. ³⁴² In one case, the court ruled that the commonwealth's attorney had wrongfully appealed to the passions of the jury by exciting their personal interests in protecting the safety and security of their homes and property through these (and other) remarks: "This case is about the security of Franklin County property owners . . . . The criminal law is . . . to protect your property and to protect you from defendants like this gentleman right here." ³⁴³ However, it is proper for a prosecutor to ask the jury to fix punishment that will deter others from committing the crime. ³⁴⁴

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Argument must conform to the instructions given by the judge to the jury. ³⁴⁵ In preparing the argument, defense counsel should anticipate the instructions the judge will give the jury. Counsel should then recheck his or her argument after the judge has told counsel what instructions will be given. It is particularly effective to quote verbatim from the instructions that were given to the jury.

During closing argument in the guilt phase of the trial, defense counsel may not mention that the offense carries with it a mandatory minimum sentence or the existence or calculations of the sentencing guidelines. ³⁴⁶

11.603 Objections. Depending upon the circumstances, defense counsel may decide either to ignore an error made in the prosecution's argument, to object to it and request that the jury be instructed to disregard it, or to object to it and move for a mistrial. Unless a specific objection is made to an improper argument, it cannot be asserted on appeal, except in unusual circumstances. ³⁴⁷ A timely motion for mistrial or cautionary instruction is required to preserve for appeal a prosecutor's alleged improper argument, even if an objection is made and is improperly overruled by the trial judge. ³⁴⁸ If the error is one that is not prejudicial to the defendant, defense counsel may feel nothing is to be gained by objecting to it. Interrupting opposing counsel in the middle of an argument can appear rude to a jury, and defense counsel should generally try not to interrupt the prosecutor unless error has clearly been committed. If the court sustains the objection, it will direct the commonwealth's attorney to refrain from making such statements and will instruct the jury to disregard the statement that was in error. ³⁴⁹ Usually, such an instruction cures the error, but common sense may suggest that the jurors will fail to heed the court's instructions during their deliberations. Therefore, to assist the jury in understanding the reason for the objection, defense counsel should state carefully the reason for the objection, the fact

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that it is a flagrant violation of the defendant's rights, and the unfairness of the prosecution in making such an erroneous statement.

Sometimes statements made by the prosecution are so highly prejudicial and inflammatory that the error cannot be cured by the judge's instructions. ³⁵⁰ Under these circumstances, the defense should consider moving for a mistrial. If the motion is granted, the defendant will be given another trial before a different jury. Since the right to move for a mistrial will be waived unless the motion is made before verdict, defense counsel must decide whether the chances of acquittal are better before the present jury or another jury. It may be wise for defense counsel to ask for a brief recess, so that the decision may be discussed with the defendant.

11.604 Practice. Final opportunity to present to the jury the reasons for acquitting an accused is one of the most important aspects of the criminal case. Many a case, otherwise well-presented, has been lost by listless or insincere argument. Poor preparation and lack of emphasis on this vital portion of a trial can be disastrous to the chances of an acquittal. An effective, well-thought-out presentation can often make the difference between an acquittal and a conviction.

The rational aspect of argument implies other functions, such as: helping the jury better understand the trial court's charge, which could contain such confusing concepts as malice aforethought or constructive possession; selecting, arranging, and interpreting portions of the evidence that are relevant to counsel's theory of the case; and guiding the jury in judging the credibility of witnesses.

The attorney should make every effort to put the evidence adduced at the trial together in a complete, understandable picture, spotlighting conflicting and confusing portions of the evidence. Basically, the objective of counsel at summation is to win the understanding and allegiance of the jury for himself or herself as counsel, as well as for the defendant whom he or she represents. Counsel should aim also to explain the legal basis and justification for a "not guilty" verdict. Counsel should be certain to state the evidence that requ...