Dangerous Crossing: the Line Between Proper and Improper Argument
| Publication year | 2001 |
| Pages | 14-23 |
70 J. Kan. Bar Assn. 2, 14-23 (2001). Dangerous Crossing: The Line Between Proper and Improper Argument
70 J. Kan. Bar Ass'n, February 2001, 14-23 (2001)
I. Introduction
As a trial judge, I believe that trial attorneys give too little consideration as to whether their arguments or their opponents' arguments cross the line from proper to improper argument.
Improper argument can adversely affect a trial in many ways. Everyone knows that improper argument can cause a mistrial, or can cause a case hard won at trial to be overturned on appeal. Less well appreciated is that improper argument can undermine effective argument by making the offending attorney appear unprofessional to the jury,[1] by inviting objections from opposing counsel which disrupt the flow of the attorney's argument thereby hindering communication with the jury, and by "opening the door" to improper counter argument by opposing counsel. Most insidiously, improper argument, if persuasive, can promote injustice by swaying the jury to render an unjust verdict. As a consequence external to the case, making improper argument can violate the Kansas Rules of Professional Conduct, and can possibly result in disciplinary proceedings against the offending attorney.
Despite the potentially catastrophic consequences of improper argument, all too often trial attorneys are indifferent to improper argument when it occurs. This indifference is reflected in Kansas appellate cases. In cases where improper argument is raised on appeal, counsel often times made no contemporaneous objection in the trial court. Although appellate courts have held that when improper argument jeopardizes the criminal defendant's right to a fair trial, the trial court should intervene without waiting for an objection from counsel,[2] only one Kansas case can be found where the trial judge has so intervened without an objection.[3] Likewise, in civil trials, where counsel deliberately engages in serious misconduct, it has been held that such actions should be restrained by the trial court without the necessity of objection by offended counsel,[4] and yet no Kansas cases can be found where the trial judge has intervened in such a situation on the judge's own initiative.
The purpose of this article is to heighten awareness of the problem of improper argument. To assist counsel and the trial courts in recognizing improper argument when it occurs, the first part of this article will state the essential rules governing the content of argument, and the various forms of improper argument will be illustrated through a survey of the Kansas case law setting forth actual arguments found to be improper. To better understand the dangers of engaging in improper argument, the balance of the article will be devoted to the consequences of improper argument, not just the generally recognized consequences of mistrial and reversal, but the often overlooked consequence of the responsive argument that the improper argument may invite. It is hoped that counsel will come away with a better appreciation of why they should be careful to make only proper argument.
II. The Line Between Proper and Improper Argument
Jury argument was never intended to be an unduly restrictive exercise. The purpose of closing argument is to enlighten the jury so that it may render a correct verdict.[5] Counsel may draw reasonable inferences from the evidence, and considerable latitude is allowed in the discussion of the evidence in which counsel may use illustrations and appeal to the jury with all the power and persuasiveness which counsel's learning, skill and experience enable counsel to use.[6] But, there are certain lines which counsel may not cross.
From time to time the Kansas appellate courts have urged trial attorneys to take a more disciplined approach to argument.[7] In the case of State v. Foster,[8] where the prosecutor made questionable comments during argument, the court observed: "We fail to understand why a seasoned prosecutor would risk reversal by injecting such remarks during trial."[9] More recently, in the case of State v. Mosley,[10] the court stated:
"We wish to remind trial advocates that final argument is a crucial and delicate time of the trial. It is extremely dangerous to allow zealousness to be given too loose a rein."[11]
To combat improper argument, trial counsel must know the rules governing proper jury argument and have a familiarity with the location of the line between proper and improper argument. Such knowledge is necessary for trial attorneys to properly argue their cases, to know when to object to opposing counsel's argument, and to defend their argument when objections are made. Rather than trying to learn a long list of specific prohibitions, counsel should consider the general principles from which all the prohibitions are drawn.
The fundamental rule is that argument must be confined to the evidence and to the law as instructed.[12] Thus, comments outside the law and evidence are prohibited. Juries must be given an opportunity to exercise reason and sound judgment, free from passion and prejudice.[13] Thus, appeals to passion and prejudice foreign to the case are prohibited. Also prohibited are arguments in contravention of constitutional rights and statutory policy, such as comments infringing upon privileges, particularly the criminal defendant's right to remain silent.[14]
Statements Outside the Facts and Law
Kansas case law contains many examples of improper argument, and various cases serve to illustrate the various categories of improper argument. The first category of improper argument is where counsel strays outside the facts of the case and the law as instructed. Any misstatement of the facts or the law, whether inadvertent or by design, is a violation of this rule. In the case of the State v. Gardner,[15] the prosecutor misstated the location within the defendant's house where certain items belonging to the victim were found. Although this misstatement of fact was "of no real import," was "made in passing," and was "not a significant part of the state's case," it was, nevertheless improper.[16]
In the case of State v. Johnson,[17] where the defendant testified that he had seen a certain individual fleeing from the crime scene, the prosecutor argued that this testimony was not believable as this was the first time the defendant had mentioned the individual's name. In fact, the individual's name had been given to the prosecutor before trial by defense counsel to "run checks" on the man. The prosecutor knew his argument was false, and allowed the trial judge to overrule defense counsel's objection. The Supreme Court noted that even if the prosecutor's false statement had been "made from mere oversight and not to intentionally mislead the court and jury," the argument would have still been improper.[18]
Asserting facts from outside the evidence is a form of misstatement of fact. Such misstatements of fact occur when prosecutors suggest that more evidence of guilt exists than was presented. In the case of State v. McCray,[19] the prosecutor suggested that the state's witness could have provided more evidence, stating: "[T]here's probably more he knows, but the more he tells, the more he keeps implicating the defendant." In State v. Pham,[20] the prosecutor suggested to the jury that she had many additional witnesses who would tie the defendant to the crime, but told the jury she simply chose not to call them to avoid wasting time. In State v. Gray,[21] the prosecutor referred to testimony from the preliminary hearing which conflicted with the trial testimony. The problem was that the preliminary hearing testimony was not entered as evidence at the trial. In State v. Gammil,[22] the prosecutor informed the jury that the State could have proved certain facts had it not been for the trial court refusing to permit the evidence to be received.
Similarly, misstatements of fact occur when prosecutors allude to other crimes not in evidence. In State v. Correll,[23] a child molestation case, the prosecutor argued to the jury that although the defendant could have been charged with "ten, twenty or thirty counts . . . We're asking that you find that it happened once and convict him of just one count." In State v. Price,[24] after noting that the two victims had verified one another's stories, the prosecutor went on to state, "and if time permitted, who knows how many other instances that we could find."
Like misstatements of fact, misstatements of law are improper. Ironically, many misstatements of law have occurred when prosecutors have attempted to explain some of the most basic precepts in the criminal law. In the case of State v. Banks,[25] the prosecutor misstated the law by improperly defining reasonable doubt. While it was proper for the prosecutor to argue that beyond a reasonable doubt is not beyond any doubt, and is not beyond a shadow of a doubt, it was improper to argue that "reasonable doubt means if you are going to say these men are not guilty of something, you have to have a reason for it."[26] The prosecutor in State v. Mitchell,[27] erred in telling the jury that "'the [s]tate's burden of proof in this type of criminal case and in any criminal case is a common sense burden.'" The Kansas Supreme Court viewed this statement as an attempt by the prosecutor "to alter the [s]tate's burden," and noted that "[w]hile the jury is free to use common sense to evaluate the evidence and the testimony, the burden of proof remains 'reasonable doubt.'" It was the presumption of innocence that tripped up the prosecutor in the case of State v....
To continue reading
Request your trial