Objections During Closing Argument

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 377-398

CLOSING ARGUMENT:

OBJECTIONS

CHAPTER 31

OBJECTIONS DURING

CLOSING ARGUMENT

§31:01 New York Trial Notebook 31-2

CLOSING ARGUMENT:

OBJECTIONS

I. GENERAL PRINCIPLES

A. PURPOSES

§31:01 Object to Obtain Curative

Instruction

Counsel may object during the adversary’s

closing argument. [Dimon v. New York Central and

Hudson R.R. Co., 173 NY 356, 66 NE 1 (1903);

Kraus v. M. & G.W. Corp., 203 AD 582, 196

NYS 845 (1st Dept 1922) (verdict reversed and

trial court chastised for admonishing counsel and

threatening to cite him for contempt for objecting

during opponent’s summation); Binder v. Miller, 39

AD3d 387, 387, 835 NYS2d 62, 63 (1st Dept 2007)

(“blanket prohibitions such as given in this case,

directing counsel that ‘there is to be no objecting

in the middle of summations,’ are inappropriate... .

it is axiomatic that where counsel, in summing up,

exceeds the bounds of legal propriety, it is the duty

of opposing counsel, inter alia, to object specifically,

to point out the language deemed objectionable, and

to request the court rule on the objection, admonish

counsel to desist from such improper remarks, and

direct the jury at the appropriate time to disregard

such improper statements.”); Padovani v. Miller, 44

AD3d 917, 843 NYS2d 518 (2d Dept 2007) (trial

court erred in prospectively precluding the parties

from objecting to summations, although the error

was harmless).] “[I]f counsel in summation refers

to facts not in evidence or comments upon matters

which are immaterial or irrelevant to the issues,

then, the required and proper practice is for opposing

counsel to interrupt the summation for the purpose

of objecting to the improper statements therein.

… But there is no justification for the interruption

of a summation to interject baseless objections or

improper comment. Such interruptions are to be

dealt with by the trial court as in the cases of other

improper trial tactics having a tendency to thwart the

proper administration of justice. As in all aspects

of a trial, the matter of the conduct of counsel in and

during summation is subject to the supervision of

and full control by the Trial Judge. He is bound to

be vigilant to prevent abuses of the rights of counsel

in this connection. He may stop and admonish

counsel whenever there is an improper reference

to extraneous and prejudicial matters. On the

other hand, it is equally the duty of the Presiding

Judge to see that counsel has the full and proper

opportunity to properly and effectively present his

client’s case. In furtherance of this duty, firm action

should be taken, whenever necessary, to prevent

the improper interruption of a summation. If, at

first, counsel breaks in upon a summation for the

purpose of making patently groundless objections or

unauthorized statements, the Trial Judge may rebuke

him, and if the conduct is persisted in, the attorney

should be admonished or reprimanded. Here, as

in all phases of the trial, the firmness of the Trial

Judge in his supervision of the conduct of counsel,

is the key to a fair and impartial trial.” [People v.

Marcellin, 23 AD2d 368, 370-371, 260 NYS2d 56 0,

562-563 (1st Dept 1965).]

If the court sustains the objection, the court

may give a “curative” instruction to the jurors,

telling them to disregard the improper statement.

[Van Valkenburgh v. Koehler, 164 AD2d 971,

559 NYS2d 766 (4th Dept 1990); see also

Layton Sales & Rentals, Inc. v. Somat Realty

Corp., 39 AD2d 640, 331 NYS2d 164 (4th

Dept 1972) (reversal not warranted where no

objection made during summation and no request

made for curative instructions).] The court may

even admonish counsel for the remark. [Dimon,

citing Crumpton v. United States, 138 U.S. 361

(1891) (noting refusal of the court to so admonish

counsel and instruct jury is grounds for exception);

Kraus.] The court should give curative instructions

immediately. When the court sustains an objection

but does not give the “curative instruction” until

the end of the summations, the instruction is given

too late and requires reversal. [See Boyd v.

Blessey, 96 AD2d 816, 465 NYS2d 563 (2d

Dept 1983) (reversal required where no curative

instruction given until after summations ended;

also instruction itself held inadequate).]

§31:02 Object to Establish Record for

Appeal

If you fail to object to improper closing

argument, you may fail to preserve claims of error

for appellate review. [Heberer v. Nassau Hospital,

119 AD2d 729, 501 NYS2d 143 (2d Dept 1986);

see also Gonzalez v. Cheng, 287 AD2d 595, 731

NYS2d 887 (2d Dept 2001) (by not objecting to

defense counsel’s comments plaintiffs failed to

preserve their claims of error for appellate review;