Calling the witness a liar during closing argument: the Florida Supreme Court's final approval.

• Author: Montz, Craig Lee

This article addresses the Florida Supreme Court's resolution of the issue of whether a party may refer to a witness as a "liar" during closing argument in a trial. Until recently, there has been a divergence in the district courts of appeal as to whether a lawyer may refer to a witness as a "liar" during closing argument. Courts addressing this issue, however, have uniformly agreed that the purpose of closing argument is to facilitate the jury's proper analysis of the evidence so that it may arrive at a just conclusion based solely upon the evidence in the record.(1)

Moreover, whether in criminal or civil trials, courts have applied Rule 4-3.4 of the Rules Regulating The Florida Bar prohibiting an attorney from stating a personal opinion as to the credibility of a witness during closing argument.(2) Yet, the appellate courts wavered in their opinions as to whether characterizing a witness as a "liar" constituted an ethically improper personal opinion or whether it was a permissible comment on the credibility of a witness, when supported by record evidence. The Florida Supreme Court resolved this issue in deciding Murphy v. International Robotics Systems, Inc., 766 So. 2d 1010 (Fla. 2000).

Prior Florida Appellate Decisions

Until Murphy, the ability to refer to a witness as a "liar" in closing has been dependent upon the appellate district and the specific point in time in which, the civil case was tried. The divisiveness existed primarily because formidable arguments have been available on both sides of this issue. For example, the Fourth District Court of Appeal adopted a bright-line rule that calling a witness a "liar" during closing argument was grounds for reversal. Illustrative of this position is Pier 66 Co. v. Poulos, 542 So. 2d 377, 380 (Fla. 4th DCA 1989). During closing argument, the plaintiffs lawyer repeatedly expressed his opinion that the defendants were "liars."

The court held that "such comments were improper, as they went far beyond simply asking the jury to consider whether they believed the witnesses' testimony and added to the risk of prejudice affecting the verdict."(3)

Likewise, this same approach was echoed 11 years later in King v. National Security Fire & Casualty Co., 656 So. 2d 1335 (Fla. 4th DCA 1995),(4) in which the court stated, "[W]e do not condone the objectionable comments made by appellee's counsel and caution the parties that it is improper to impugn the integrity of a witness by calling him or her a `liar.'"(5) Yet in Goutis v. Express Transport Inc., 699 So. 2d 757 (Fla. 4th DCA 1997),(6) the court clearly receded from this position. In Goutis, the attorney argued during closing, "The evidence is absolutely lacking in this case to support those opinions of Mr. Kreft [appellees' expert]. They are pure groundless speculation."(7) Although the attorney did not specifically characterize the witness as a "liar," the Fourth District Court of Appeal gratuitously observed "it is permissible for an attorney to comment on the credibility of a witness, for example by calling the witness a liar, when it is with reference to the testimony given and the attorney is merely drawing a conclusion from the evidence."(8)

The Second District Court of Appeal loosely broached this issue in Murphy v. Murphy, 622 So. 2d 99 (Fla. 2d DCA 1993), when the court observed that, among other things, counsel's closing argument was unquestionably improper and highly prejudicial when he referred to a witness as a "liar, a sneak, and a thief."

Until recently, the Third District Court of Appeal seemed to be in accord with the decisions prohibiting counsel from arguing a witness is a "liar."(9) For example, during closing argument in Kaas v. Atlas Chemical Co., 623 So. 2d 525 (Fla. 3d DCA 1993), counsel stated to the jury: "I can prove that that guy is a liar on this issue because, ladies and gentlemen of the jury, take a look at this .... That's a lie."(10) The court observed, "There is no question but that counsel is permitted to demonstrate inconsistencies between witnesses' testimony and within a witness' own testimony. But lines have been drawn as to what constitutes proper comment and what is egregious."(11) As a result, the court held that "it is fundamentally incorrect for counsel to attempt to impugn the integrity of a witness by calling him a liar" and reversed the case for a new trial.(12) Yet, if the standard in the Fourth District did not seem inconsistent enough, the Third District failed to ameliorate the confusion when it subsequently and surprisingly stated that Kaas did not "flatly prohibit[ ] the use of the word `liar' under any circumstances."(13)

The court's professed clarification of Kaas and its departure from its sister courts' earlier decisions are underscored in Forman v. Wallshein, 671 So. 2d 872 (Fla. 3d DCA 1996). In Forman, the court stated that there was ample evidence to dispute plaintiffs credibility and thus defense counsel could properly refer to plaintiff as a "liar" in closing argument because 1) plaintiff testified he could no longer perform certain work duties as the result of an automobile accident, but 2) his employer testified he had never heard of the automobile accident or injury until subpoenaed as a witness, and 3) plaintiff's response to physical tests were inconsistent with the type of injury he claimed, and 4) on an insurance application, two years after the accident, the plaintiff failed to disclose the existence of the injury and continuing treatment from the accident. On this record, the court held counsel may, in closing argument in a civil case, "refer to the opposing party as a `liar' where there is a basis in the evidence to do so."(14)

Hence, the courts' inconsistent and nebulous treatment of this issue partially contributed to Florida's current "closing argument crisis" of which appellate judges, ironically, have voiced numerous complaints.(15)

Florida Supreme Court's Resolution in Murphy

In Murphy v. International Robotics Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Florida Supreme Court addressed the issue of whether calling a witness a "liar" constitutes improper closing argument in a civil case.(16) In Murphy, defense counsel accused the individual plaintiff of wanting to "cash in a lottery ticket in this litigation," and suggested that if the jurors awarded the plaintiff damages based on a "phony consultancy agreement" they would be "accessories, after the fact, to tax fraud."(17) In its...