Reversible Errors During Closing Arguments-how to Avoid Crossing the Line

JurisdictionColorado,United States
CitationVol. 40 No. 6 Pg. 37
Pages37
Publication year2011
40 Colo.Law. 37
Colorado Bar Journal
2011.

2011, June, Pg. 37. Reversible Errors During Closing Arguments-How to Avoid Crossing the Line

The Colorado Lawyer
June 2011
Vol. 40, No. 6 [Page 37]

Articles
Criminal Law

Reversible Errors During Closing Arguments-How to Avoid Crossing the Line

by Samuel A. Evig

Criminal Law articles are sponsoredby the CBA Criminal Law Section and generally are writtenby prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.

Coordinating Editor

Morris Hoffman, Judge for the Second Judicial District Court, Denver

About the Author

Samuel A. Evig is a deputy district attorney in Colorado's Eighteenth Judicial District-sevig@da18.state.co.us. The interpretations and analysis in this article are not necessarily those of the Eighteenth Judicial District Attorney's Office.

Closing argument is the last opportunity to persuade the jury, to win a case, and to commit reversible error. Although courts permit advocates to make creative closing arguments, developing Colorado case law limits what advocates may say in the context of criminal trials.

Closing argument is the last chance to persuade the jury. The burning desire to seize the final opportunity to win sometimes overpowers good sense, and may drive attorneys to cross the line separating zealous closings from improper ones. This article examines the ethical and case-based Colorado law defining the line between the two.

Ethical Rules

Ethical rules provide the foundation for proper closing argument. Colorado Rule of Professional Conduct (Rule) 3.4 governs fairness to the opposing party and counsel. Subsection (e), which is devoted to trial conduct, provides that a lawyer shall not:

in trial, allude to any matter that the lawyer does not reasonably believe is relevant, or that will not be supportedby admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused... .

Ethics rules apply with equal rigor to both sides in criminal cases.(fn1) Rule 3.4(e) contains two core prohibitions: asserting personal opinions and alluding to matters not in evidence.(fn2)

Asserting Personal Opinions

The ethical prohibition against asserting personal beliefs establishes the first major guide for attorneys in closing arguments: avoid "I" statements, such as "I think," "I believe," or "I know." A defense attorney asserting he or she knows a defendant is innocent violates the rule, as does a prosecutor asserting he or she knows a defendant is guilty.(fn3) The rule also applies to assertions of personal knowledge of disputed facts short of the ultimate fact of guilt or innocence. Even using a softened formulation, such as "I submit," followedby an assertion can be dangerous.(fn4) The best practice is to avoid "I," replacing even "I submit" with "the evidence shows."

Clever lawyers can convey personal opinions without using the "I" word. Reported cases often struggle with whether such "non-I" practices in closing argument cross the line into personal opinions. Issues surrounding personal opinions often arise in situations involving the credibility of witnesses. For instance, People v. Villa illustrates the difference between an unanchored statement about credibility, which is an improper personal opinion, and the same kind of statement anchored to the facts, which is proper argument.(fn5) The prosecutor argued, "What [the child victim] said happened to her is the truth."(fn6) Next, the prosecutor asked the jury to "find the defendant guilty, because he is guilty."(fn7)

The court of appeals concluded that the request to find the defendant guilty was not a statement of personal opinion. The request, when read in context, asked the jury to convict based on the evidence.(fn8) However, the court concluded that the statement regarding the veracity of the child was an inappropriate expression of personal belief in the child's credibility.(fn9)

One area of the law about personal opinions has a bright line: an attorney cannot say that a witness or a defendant lied. Use of the term "lie" in all its various forms is one of the few "thou shalt not" linguistic prohibitions articulatedby the courts.(fn10) Indeed, if one phrase is plain error, it is to say that a defendant is lying.(fn11)

Counsel must find other terms to draw attention to inconsistent testimony. In People v. Kerber, witnesses gave "inconsistent and in some respects irreconcilable" testimony.(fn12) A prosecutor highlighted those differences, and argued, in reference to the defendant, "If his story is true, he is not guilty[.] If he is not telling the truth, he is guilty of all counts."(fn13) The court upheld the use of this language, including phrases such as "he is not telling you the truth" in reference to the defendant.(fn14)

Alluding to Matters not in Evidence

The first portion of Rule 3.4 prohibits trial lawyers from referring to evidence outside the record,(fn15) and prosecutorial violations of this rule can lead to reversals of convictions.(fn16) This rule is easy to follow in most contexts, but there is a subset of this rule-so-called "negative inference arguments"-that has generated some controversy in case law. An advocate makes a negative inference argument when he or she asserts that the absence of some evidence or fact leads to a particular conclusion. The primary use of these arguments isby the defense because, as discussed below, prosecutors cannot comment on a defendant's failure to testify or to shift the burden to the defense.

Glover v. Eighth Judicial District contains examples of proper and improper negative inference arguments.(fn17) There, defense counsel argued two negative inferences: (1) that the state's failure to conduct gunshot residue tests on a firearm would have helped the jury in its determination; and (2) that the failure of the prosecution to introduce the defendant's taped statement indicates that it would have been exculpatory.

Defense counsel's argument regarding the first negative inference was proper-the defense argued the evidence would have aided the jury. However, the second argument was improper for a number of reasons. First, the defense used the argument to assert that the videotaped evidence would have been devastating to the state's case.(fn18) Thus, the defense violated the rules about referring to extra-record evidence and, arguably, expressed a personal opinion about that evidence. Second, the defense's inference was improper because the videotaped statements, if offeredby the defense, were self-serving hearsay.(fn19)

Prosecutors

Despite the side-neutral language in Rule 3.4(e), and despite cases stating that ethics rules apply equally to prosecution and defense,(fn20) courts apply them more strictly against prosecutors. The rationale behind this asymmetry reflects the prosecutor's peculiar place in the justice system. Appellate courts have found that "[p]rosecutors have a higher ethical responsibility than other lawyers."(fn21) Prosecutors have the duty to seek justice, as opposed to seeking only to win.(fn22)

Although appellate courts frame this asymmetry in terms of standards for argument, the difference has more to do with the consequences of the violation than with the ability to make a certain argument. In practice, the ethical rules limit what both sides may say, but the common law imposes more serious consequences for a prosecutorial violation than for a defense violation. For example, improper argumentby the defense can result in a mistrial.(fn23) However, there are no reported Colorado cases in which a court remedied a defense lawyer's improper commentsby granting a mistrial. This is because prosecutors face a huge risk asking for a mistrial-if an appellate court later finds the trial court should not have granted the mistrial, jeopardy has attached and the defendant may not be retried.(fn24)

In contrast, improper argumentby the prosecutor may violate a defendant's due process rights(fn25) and therefore is often the subject of a defendant's appeal. Because of this appellate asymmetry, the common law limits on closing argument discussed in the balance of this article all arise from cases discussing prosecutorial limits. Counsel should be aware that the ethical rules-and even some of the common law rules-apply, at least in theory, to both sides. When a defense lawyer violates these rules, the violation may not have lasting consequences for the outcome of the case, but the court could admonish,(fn26) grieve, or find defense counsel in contempt.(fn27)

Case Law Rules

Reported cases have developed a series of rules regarding proper closing argument that go beyond the ethical commandments that apply to personal opinions and commenting on matters not in evidence. Unlike the ethics-based rules, the case-based rules are rules of constitutional dimension, because the majority of appellate...

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