Avoiding Error in Closing Argument

Publication year1995
CitationVol. 24 No. 1 Pg. 33
24 Colo.Law. 33
Colorado Lawyer

1995, January, Pg. 33. Avoiding Error in Closing Argument


Vol. 24, No. 1, Pg. 33

Avoiding Error in Closing Argument

by H. Patrick Furman

Trial lawyers dream of the perfect closing argument, in which they blend fact, emotion and persuasion to sway an undecided jury to vote their way. Closing argument is the point at which counsel can be most dramatic and argumentative. However, it is important to recognize the limitations on closing argument, for two reasons. First, closing argument is the point in trial at which trial lawyers' emotions are most likely to lead them astray into unprofessional and even unethical behavior. Secondly, a closing argument that is interrupted by an objection and an adverse ruling may lose effectiveness.

The general principles governing closing argument are easily stated. The scope of closing argument is within the discretion of the trial court, and rulings thereon will not be disturbed absent a gross abuse of discretion.(fn1) Closing argument must be confined to the evidence adduced at trial and the reasonable inferences that can be drawn from that evidence.(fn2) Counsel may not express personal opinions concerning the evidence or witnesses.(fn3) Counsel may not make arguments that appeal to the prejudices of the jury,(fn4) nor inject collateral issues into closing arguments.(fn5) Prosecutors may not comment on the post-advisement silence of a defendant.(fn6)

Recognizing and following these basic rules are not as easy. This article discusses some of the more common errors committed in closing argument. Most of the cases involve the closing arguments of prosecutors because of the nature of the appellate process, but the principles are applicable to both prosecutors and defense counsel. Finally, the article discusses appellate review of claims of error in closing argument.

Comments on Witness Credibility

The credibility of one or more witnesses is often central to the resolution of a case. Jurors are given an instruction to guide them in their determination of credibility issues.(fn7) Clearly, counsel may argue whether a witness has passed the credibility test(fn8) and may tell the jury that the jurors make the determination of whether a witness is credible.(fn9)

However, the right to comment on the credibility of witnesses is not unlimited. Counsel may not argue credibility in terms that reflect their personal opinions.(fn10) This rule is particularly strict for prosecutors: "Expressions of personal opinion as to the veracity of witnesses are particularly inappropriate when made by prosecutors in criminal trials."(fn11)

Thus, a statement that a witness "lied" during his or her testimony has been held inappropriate,(fn12) as has a statement that a witness was "honest."(fn13) In both instances, nevertheless, the court found the errors harmless because the improper comments were a small part of the summation and because the jury was properly instructed that closing arguments are not evidence. In People v. Trujillo,(fn14) however, comments that the defendant's statement was "riddled with lies" were held to rise to the level of plain error and justify reversal of the defendant's conviction. The Colorado Court of Appeals in Trujillo reiterated that the impropriety in such arguments is that they amount to an expression of personal opinion as to the truth or falsity of testimony.

A defendant who testifies is subject to the same sort of credibility attack as any other witness. If a defendant laughs during the testimony of other witnesses and during the prosecutor's closing argument, it is not plain error for the prosecutor to argue that these actions go to the credibility of the defendant.(fn15)

Injection of Collateral Issues

Closing argument should be confined to issues relating to guilt or innocence.(fn16) It is improper for counsel to inject collateral issues, such as sympathy for a defendant or fear about the general crime problem, into closing argument. For example, it has been held improper for either counsel to ask jurors to "stand in the shoes" of a witness, victim or defendant.(fn17)

A reference to the general problem of drugs in society and the role of police and informants in combatting that problem has been held improper.(fn18) A suggestion that drugs were being offered to the "men, women and children of Denver" was held improper when there was no evidence presented as to the persons for whom the drugs were intended.(fn19) Simply injecting the broader issue of drugs in schools also has been held improper.(fn20)

Attempting to inflame a jury by suggesting that the defendant has engaged in other illegal activity violates the general ban on evidence of other unchanged offenses and improperly shifts the jury's attention away from the issues in a case.(fn21)


In a kidnapping case where the victim was an adult but there was evidence that the defendant wanted photographs of young nude children, a suggestion that candy in the defendant's glove box might have been used to solicit young children was held to appeal improperly to the sympathy and prejudice of the jury.(fn22) Asserting that there was a "good argument" that the defendant had engaged in another crime, after the defendant had been acquitted of that crime is improper.(fn23)

Attempting to inflame a jury by characterizing the defendant as an animal is improper. In People v. Hernandez, the Colorado Court of Appeals said: "The courts have condemned as improper a prosecutor using such terms as 'rat,' 'dog' or 'animal' to describe a defendant."(fn24) While this comment was made in connection with an opening statement, the cases cited and the opinion itself suggest that the condemnation extends to every phase of the trial. The Hernandez court described the prosecutor's comment that "sometimes it takes a rat to catch a rat..." as inflammatory, derogatory, dehumanizing, inconsistent with the prosecutor's role and dignity and improper.(fn25) Similarly, a reference in closing argument to the defendant as a "lion" who stalked "weak prey" has been held improper,(fn26) although not plain error, in the context of the facts of the case, the instructions of law and the arguments of...

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