Section 25.29 Areas of Improper Argument by the Prosecutor

• Library: Criminal Practice 2012 Supp

B. (§25.29) Areas of Improper Argument by the Prosecutor

The closing argument is an area ripe with possibilities for abuse. Because the court is given such broad discretion in closing argument, however, the appellate courts will only reverse a conviction if counsel has made proper objections and preserved the record. Often, appellate courts will find the error, even if properly preserved, to be harmless. Therefore, the best advocacy approach is to file a motion in limine before closing argument detailing those areas of concern before closing. This strategy is effective for many reasons:

1. It gives the defense attorney time to address the issues fully and to make a complete record while not in the heat of battle.

2. The trial court is more likely to be persuaded when the argument is made outside the confines and time constraints of the closing argument.

3. The motion in limine has a deterrent effect on the prosecutor. Even when the trial court overrules the defense attorney’s motion in limine, the prosecutor is forewarned that the attorney will likely renew the objection during argument. Rather than risk being objected to, the prosecutor may well decide to avoid the area altogether.

The following is a laundry list of areas of improper argument that counsel should be familiar with:

· It is improper for the prosecuting attorney to personalize the case to the jurors or to attempt to engender fear in the jurors for themselves or for their families. State v. Raspberry, 452 S.W.2d 169 (Mo. 1970); State v. Mooney, 714 S.W.2d 216 (Mo. App. E.D. 1986); State v. Long, 684 S.W.2d 361 (Mo. App. E.D. 1984).

· It is improper for the prosecutor to indicate to the jury the prosecutor’s personal opinion or that the prosecutor has special knowledge about the case. State v. Hornbeck, 702 S.W.2d 90 (Mo. App. E.D. 1985); Grubbs v. State, 760 S.W.2d 115 (Mo. banc 1988), cert. denied, 490 U.S. 1085 (1989); Newlon v. Armontrout, 885 F.2d 1328 (8^th Cir. 1989); State v. Grant, 702 S.W.2d 857 (Mo. App. W.D. 1985).

· It is improper for the state to argue facts that are not in evidence. Long, 684 S.W.2d 361; State v. Bohlen, 670 S.W.2d 119 (Mo. App. E.D. 1984); State v. White, 440 S.W.2d 457 (Mo. 1969). In State v. Williams, 119 S.W.3d 674 (Mo. App. S.D. 2003), the prosecutor’s reference to excluded testimony in closing argument was likewise considered manifest injustice.

· It is improper for the state to use epithets. State v. Munoz, 678 S.W.2d 834 (Mo. App. E.D. 1984); State v....