I Believe, the Golden Rule, Send a Message, and Other Improper Closing Arguments

• Publication year: 2022

48 Creighton L. Rev. 521. I BELIEVE, THE GOLDEN RULE, SEND A MESSAGE, AND OTHER IMPROPER CLOSING ARGUMENTS

I BELIEVE, THE GOLDEN RULE, SEND A MESSAGE, AND OTHER IMPROPER CLOSING ARGUMENTS

R. COLLIN MANGRUM(fn*)

I. INTRODUCTION

Closing argument provides counsel with an opportunity to put the entire case together for the jury in a mosaic tapestry of facts, inferences, and law. The jury has patiently endured voir dire, openings, directs, crosses, redirects, the admission of exhibits, and the tedious instructions by the judge. The jury wants, expects, hopes that counsel's closings will make their responsibilities easier by explaining how it all fits coherently together so that the jurors can confidently decide the issues presented to them without having to go through the controversy, confusion, and conflict depicted in the movie Twelve Angry Men.

To this end, counsel has a great deal of latitude in framing closing arguments seeking to assist the jury to connect the facts of the case to the issues presented in the jury verdict form. Latitude, however, does not mean that the gloves are off, no rules apply, and anything goes. Nor does it mean that opposing counsel must sit patiently, quietly, passively for his or her turn. Objections, though uncommon for closings, are appropriate when improper lines are crossed. Counsel may be unsure whether an argument may be improper, or may be reluctant to object during closing lest the judge overrule or worse yet, reprimand counsel for interrupting closings. Unlike the evidentiary rules applied to the presentation of evidence, which are largely statutory and supplemented by common law analysis, objections appropriate for closings remain less studied, discussed, or analyzed. Additionally, counsel may be concerned that interrupting an opponent's closing may be met with annoyance by the jurors or reciprocal objections during their own closing. Consequently, many objectionable arguments in closing go unchallenged until a last chance appeal. This Article seeks to review from a principled perspective the importance of properly objecting during closing, discussing many of the appropriate grounds for objecting during closing, and why the objections may make sense. These perspectives must then be filtered through the experienced ears of the trial attorney who must balance what, when, and why an objection may be professionally made.

II. ANALYSIS

A. FIRST PRINCIPLE: COUNSEL HAVE ETHICAL DUTIES TO REFRAIN FROM IMPROPER CLOSING ARGUMENTS

Advocates advocate. On occasion, an overly zealous advocate may advocate unethically. Counsel should always frame the closing arguments with proper ethical principles in mind. Many of the cases addressing the issue of improper remarks during closings are criminal cases involving the issue of prosecutorial misconduct. There are several reasons why this is true. First, "[p]rosecutors are held to a high standard regarding their conduct, given 'the possibility that the jury will give special weight to the prosecutor's arguments, not only because of the prestige associated with the prosecutor's office, but also because of the fact-finding facilities presumably available to the office.'"(fn1)

Second, the prosecutor is in a position of public trust. The United States Supreme Court has described this trust relationship, applied to closings, as follows:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.(fn2)

Many of the cases addressing improper comments during closing remind the prosecutors of this public duty and repeat the admonition: "while he may strike hard blows, he is not at liberty to strike foul ones."(fn3)

While the prosecutor may have enhanced ethical duties to argue appropriately, the criminal defense attorney has reciprocal duties. Indeed, many of the cases where the appellant court refuses to reverse on the basis of improper closing arguments by the prosecutor, the rationale for the refusal is because the defense attorney has invited the error or reply by an improper attack on the prosecution's case.(fn4) The appellate courts often infer that where prosecutors have responded reasonably in closing argument to defense counsel's attacks, it is less likely that the jury would be led astray.

The American Bar Association ("ABA") Standards for Criminal Justice provide:

The prohibition of personal attacks on the prosecutor is but a part of the larger duty of counsel to avoid acrimony in relations with opposing counsel during trial and confine argument to record evidence. It is firmly established that the lawyer should abstain from any allusion to the personal peculiarities and idiosyncrasies of opposing counsel. A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal.(fn5)

B. SECOND PRINCIPLE: OBJECT TO IMPROPER CLOSING OR FACE THE DIFFICULT PLAIN ERROR STANDARD OF REVIEW

Whether an "improper closing remark" rises to the level of reversible misconduct essentially depends upon three common questions and two standards of review. The three questions are: (1) was the closing remark improper;(fn6) (2) did the opposing party object to the remark or should it have been obvious to the court; and (3) was the remark prejudicial?(fn7)

The United States Court of Appeals for the Seventh Circuit in United States v. Hale(fn8) outlined a six-factor test for examining whether an improper remark by a prosecutor during closing prejudiced the accused:

(1) whether the prosecutor misstated the evidence; (2) whether the remarks implicated the specific rights of the accused; (3) whether the defendant invited the response; (4) the efficacy of curative instructions; (5) the defendant's opportunity to rebut; and most importantly (6) the weight of the evidence.(fn9)

If the opponent objects to the "wrongful" remark during closing, the court will review the court's ruling on an abuse of discretion standard of review.(fn10) If the opponent did not object, the issue will be reviewed under the plain error standard of review.(fn11) An error is not plain unless it is of such an obvious nature that "the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely [objection]."(fn12) Additionally, under a plain error review the court is unlikely to reverse unless the objecting party has been deprived of a fair trial.(fn13)

C. THIRD PRINCIPLE: COUNSEL MAY ONLY ARGUE FACTS IN EVIDENCE OR FAIR INFERENCES

A cardinal principle for closings is that counsel may not argue or allude to facts not introduced into evidence or unfair inferences from the facts admitted during the trial.(fn14) If counsel argues facts or inferences not in evidence, the closing remark is improper because the "actions or remarks call to the attention of the jurors matters they would not be justified in considering in determining their verdict."(fn15) The courts will give "considerable latitude [in their] closing arguments,"(fn16) including all reasonable inferences and deductions therefrom,(fn17) even extending to a critique of the "the plausibility of a defense theory."(fn18) Conversely, counsel may neither argue matters not admitted at trial,(fn19) nor spin evidence where there is no basis for the inference spun.(fn20)

D. FOURTH PRINCIPLE: A PROSECUTOR MAY NOT ARGUE ANYTHING THAT JEOPARDIZES THE EXERCISE OF CONSTITUTIONAL RIGHTS

1. The Sixth Amendment Right to Trial

The Sixth Amendment right to jury trial is fundamental. Accordingly, in a criminal case the prosecution cannot condemn the defense for exercising the right to trial. The issue comes up most commonly in sentencing proceedings, especially for capital crimes, where the defendant may have pled not guilty to a crime for which guilt is clear. For example, the United States Court of Appeals for the Eleventh Circuit in Cunningham v. Zant(fn21) described the prosecutor's closing arguments as "outrageous" because, in part, he argued that he was "offended" that Cunningham, in the guilt-innocence phase of the trial, had exercised his Sixth Amendment right to jury trial.(fn22) The court on appeal condemned the argument as follows:

By these comments and others, the prosecutor improperly appealed to the jury's passions and prejudices. He sought to inflame the jury and to misinform them as to the role that certain fundamental rights guaranteed by the Sixth Amendment play in our legal system and to suggest that Cunningham was somehow not entitled to those rights. A prosecutor may not make an appeal to the jury that is directed to passion or prejudice rather than to reason and to an understanding of the law.(fn23)

2. The Fifth Amendment Right Against Self Incrimination

The...