Practice Pointer

• Publication year: 1997
• Pages: 23
• Citation: Vol. 2 No. 1 Pg. 23

PRACTICE POINTER Vol. 2 No. 1 Pg. 23 Utah Bar Journal Winter, 1997

Objectionable Jury Argument

Francis J. Carney, J.

Just because a jury argument is objectionable doesn't mean that you must object. Many technically objectionable statements should pass without objection; after all, a trial is a struggle to persuade and not a demonstration of your knowledge of evidence law. Bouncing out of your seat at every provocation to voice a strident objection hardly endears you to the jury, especially if the judge overrules your objection, leaving everyone with the impression that you should sit down, shut up, and stop annoying people.

Misstatements of the facts are often better dealt with in your own argument, rather than by objection. If you have the chance to respond, you may want to hold your objections and in your response, skewer your opponent with his every inaccuracy. Jurors tend to view the message as no better than the messenger. Exaggerations, claimed facts that weren't facts at all, promises that weren't kept, are all meat for the stew of your closing argument.

Professionalism also allows a bit of latitude in argument to the other side, especially in summation, although in some quarters this is now thought quaint. And there are a few trial judges who will let nearly anything pass in closing argument, and consider it rank bad manners for counsel to ever interrupt.

Don't misinterpret me. You shouldn't hesitate to object when it's necessary, because objections not timely made will be waived. (This means immediately, and not at the conclusion of the argument.) If the objection isn't made, you'll have no basis to claim error before the appellate court. If your objection is sustained, you should follow it up with a request for a cautionary instruction to the jury or, if the offending argument was especially egregious, with a motion for a mistrial. (Made at the bench and not in front of the jury.)

Improper argument may lead to a reversal but you will have to show "prejudice," which means showing that it made a difference to the outcome. This is always a tough burden. See e.g. Jones v. Carvell, 641 P.2d 105, 1 12 (Utah 1982) ("Although the argument was improper, we do not think that it affected the fundamental fairness of the trial, and reversal is not, therefore, called for because we do not believe a different result would have occurred"); Reeves v. Gentile, 813 P.2d 111, 121 (Utah 1991) (counsel's mention of insurance during argument was in error but was "harmless").

Here's a checklist of the more common objectionable arguments you may expect to hear sooner or later in your trial career, to be used, as suggested, with much discretion.

1. Argument in the Opening Statement.

This is often more a matter of tone than of substance. Argument is difficult to define but most judges claim to know it when they hear it. The opening statement is supposed to be an outline of the evidence to come and not about how the evidence should be interpreted.

2. Misstating the Law or the Facts.

Jones v. Carvell, 641 P.2d 105 (Utah 1982): "It is as improper to misstate facts in the record as it is to state as facts propositions for which there is no evidence." Id. at 112. Some courts in other states prohibit all comment on the law by counsel on the ground that it invades the court's province in instructing the jury. Most Utah judges allow some comment by counsel on...