POINTS TO CONSIDER:

AVOIDING IMPROPER CLOSING ARGUMENT

Transcript of Power Point PresentationBy ADA Jason Lawson

Slide 1:

Avoiding improper closing argument

Slide 2:

No Narration

Slide 3:

Becoming a prosecutor carries with it a special responsibility. As recognized by the United States Supreme Court, the duty of a prosecutor is to seek

justice.

Slide 4:

While a prosecutor may use all legitimate means to bring about a just conviction, he may not use improper methods.

A prosecutor may strike hard blows, but he may not strike foul ones.

Slide 5:

During the closing argument, improper suggestions, insinuations, and especially assertions of personal knowledge are forbidden.

Slide 6:

Despite these prohibitions, courts have recognized that closing argument is a valuable privilege for the parties, and have allowed wide latitude in arguing cases to the jury.

1

Slide 7:

However, there are limitations. Arguments must be temperate, based upon the evidence, relevant to the issues being tried, and not otherwise improper.

Slide 8:

This presentation will examine areas of improper argument, consideration of whether example arguments are proper or improper, suggested practices and examples of proper arguments, and appellate review.

There are no fixed set of rules determining when an argument is improper.

Slide 9:

The most common areas of improper arguments fall into two categories. Arguments that violate the defendant’s fifth amendment privilege against self-incrimination and arguments that violate the five prohibitions of State v. Goltz.

Slide 10:

Let’s start with arguments that violate the defendants’ fifth amendment privilege against self-incrimination. Courts have held that the decision of a defendant not to testify should be considered off limits to any conscientious prosecutor.

Slide 11:

This is a very broad prohibition, and any comment focusing on or highlighting the defendant’s right to remain silent or failure to testify is forbidden.

For example, the prosecution may not argue “the defendant did not testify here today, you’ll never know his side of the story”’; or, “there is only one person who truly knows what happened in that room that day, he is sitting right there and he chose not to share that with you”; or “I wonder why he wouldn’t take the witness stand. You have all heard the old axiom ‘the truth shall set you free’. You have also heard that the truth hurts. Which do you think it was for him. We have all heard of perjury laws. Maybe the only way for him to avoid perjury yet not admit guild is to sit right there silent”. All of these arguments are improper because they focus on the defendant’s silence and failure to testify.

2

Slide 12:

Let’s consider an example. State of Tennessee v. Noura Jackson. In this case, the defendant, Noura Jackson lived in an apartment with her mother. Late

one evening, Noura Jackson came to the neighbor’s apartment pounding on the door. She exclaimed that someone had attacked her mother. The neighbor went to the apartment and found Noura Jackson’s mother deceased, the victim of a violent beating. The neighbor also noticed that Noura Jackson had suspicious injuries to her hands.

In the following weeks, during the course of the investigation, Noura Jackson gave numerous stories accounting for her whereabouts, and how she obtained the injuries to her hands. The stories differed each time she told them. In fact, in speaking with one family friend, the family friend finally just asked her “Noura just tell me where you were”.

At trial, the family friend testified. In closing argument, the prosecutor stood up, crossed the room, stood in front of the defendant, opened her hands, and said “Noura, just tell us where you were, that’s all we’re asking, just tell us where you were.”

Slide 13:

The defendant claimed that these statements were error. The Court had to make a decision of whether the prosecutor’s statements talked about the constitutional right of the defendant not to incriminate herself during the trial, or were the statements a fair commentary on the evidence presented at trial.

Slide 14:

To answer this question, the Court focused on a two-part test. Was it the prosecutor’s manifest intent to comment on the defendant’s right not to testify, and whether the prosecutor’s remark was of such a character that the jury would have necessarily taken it to be a comment on the defendant’s decision not to testify. Thus, both a subjective and an objective component of the test existed.

Slide 15:

To answer these questions, the Court considered the statement, it’s content and context, the tone of voice of the speaker, the body language of the speaker, and the lack of an accompanying reference to the proof presented at trial. Based on this evaluation, the Court concluded that the jury would have interpreted the statement as a comment on the defendant’s right not to testify.

Slide 16:

Let’s consider another example, State v. Adam Robinson.

3

This is a case involving aggravated sexual battery of a child under the age of thirteen. The defendant and the victim lived in the same apartment complex. The victim disclosed that the defendant had taken her behind a building and had molested her. At trial, the defendant offered numerous witnesses, although he himself did not testify. In closing argument, the prosecutor highlighted the point that “the defendant hasn’t offered any explanation for what he was doing behind the building with the victim through any of his witnesses”.

Slide 17:

The defendant objected, claiming that the prosecutor’s comment was an improper comment on his right not to testify at the trial.

Slide 18:

In evaluating the statement, the Court concluded that the comment did infringe on the defendant’s right not to testify because the defendant was the only person who could have offered the explanation sought.

The Court also noted that this argument shifted the burden of proof to the defendant because it required the defendant to put on proof of his innocence.

Slide 19:

Let’s consider a final example, State v. Steven Transou. This was a narcotics case in which the police executed a search warrant at a residence. At

the time of the execution, the defendant was in the bathroom flushing the toilet. The police charged the defendant with tampering with evidence, possession of drugs, and on a search of his person, also charged him with possession of the drugs found in his back pocket, being marijuana.

The defendant did not testify at trial. The prosecutor, in his closing argument, noted that the defendant had pleaded not guilty to all charges. The prosecutor said in his closing argument “the defendant tells you not only am I not guilty of that, I’m not guilty of possessing this marijuana cigarette that’s in my back pocket.”

Slide 20:

In evaluating the prosecutor’s statement, the Court did find that it was a comment on the defendant’s right not to testify and to remain silent.

Slide 21:

In each of these examples, notice the present tense of the statement made by the prosecutor. In Noura Jackson, it was “tell us where you were, that is all that we ask”. In Adam Robinson, it was “he hasn’t offered any explanation for what he was doing behind

4

the building with the victim”. And in State v. Transou, it’s “he won’t even admit to the marijuana in his own back pocket.” Often times, present tense statements are found to run afoul of the commentary against the defendant’s privilege of self-incrimination. However, past tense statements, especially when accompanied by a reference to the proof, such as “you heard detective so and so state that he would not admit to the marijuana found in his back pocket” is a reference to past acts, not acts occurring during the course of the trial.

Slide 22:

Let’s consider some examples. On each of these scenarios, a fact pattern and an argument will be given. You will be asked to determine whether the argument is proper or improper.

Slide 23:

The prosecutor in the rebuttal portion of his closing argument referenced the alleged telephone call that Ms. Long made to the defendant following the robbery stating that “Mr. Epperson doesn’t produce any phone records saying she had called the defendant, none of that.” Proper or improper?

The court found this comment to be improper. Just as in State v. Adam Robinson, the court said that this forced the defendant to prove their innocence rather than the State proving the defendant’s guilt, and thus shifted the burden of proof and commented on the failure of the defendant to provide evidence.

Slide 24:

Let’s consider another argument. The defense could have examined the blood-like stains in the home because every piece of evidence is available to anybody. Proper or improper?

The court found this comment to be improper because it once again forced the defendant to produce evidence of his innocence rather than the State producing evidence of guilt.

Slide 25:

Let’s consider a third example. The argument is this; “is there proof of theft? This is what this case comes down to. Is there proof of theft? Because, folks, to acquit that man sitting over there, to walk in here and find him not guilty, you’re going to have to believe every word that came out of his mouth, every word that came out of his mouth. And that’s going to be hard for you to do, because you heard all kinds of statements.” This is a case where the defendant testified. Proper or improper?

The court concluded that this argument was proper because it was a proper comment on the evidence produced at trial.

Slide 26:

5

In cases where a defendant does not testify, what may a prosecutor argue and not run afoul of the prohibition of commenting on the defendant’s privilege against self-incrimination.

First, as shown by the examples, the prosecutor should stay focused on the proof admitted and the reasonable inferenced drawn thereon, and not on the proof that was not admitted at the trial.

For instance, rather than argue that the defendant did not tell the jury his or her side, argue this instead. Ladies and gentlemen, you have heard this case, you have listened to the proof as it has come from the witness stand. I submit to you that one hundred percent of what you have heard in this trial supports and establishes the State’s theory of the facts of this case.

As the focus is on the proof that came from the witness stand and not on the proof that was not admitted at the trial this is a proper argument.

Slide 27:

We’ve all had situations where a defense attorney in closing argument begins to make arguments and claims that are not supported by the proof. How may a prosecutor address those arguments without violating the rules that prohibit commentary on the privilege of the defendant against self-incrimination?

The answer is to draw the jury’s attention back to the proof at trial. For instance, you can argue “ladies and gentlemen, it has been suggested to you by the defense that a certain fact occurred. Well, our judge is going to tell you in a few moments that the arguments of lawyers is not evidence. The evidence came from that witness stand, and you have attentively listened to those witnesses, and I appreciate that. Now I ask you to apply this test; ask yourself which witness said that occurred, which witness, not a single one.

This practice does not violate the defendant’s right to remain silent as the focus in on the proof admitted at trial. In most jurisdictions, the court will instruct the jury that the comments, arguments, and statements of counsel are not evidence and that the evidence comes from the witness stand. If your trial judge is not instructing the jury as to this language, a special instruction should be sought, or requesting the trial judge to instruct the pattern jury instruction which contains this language should be requested.

Slide 28:

In rare situations, another avenue may be available to discuss a person failing to testify in favor of the defense. In State v. Francis, the Tennessee Supreme Court held that the absent material witness instruction applies equally to both the prosecution and a defendant in a criminal trial. However, the absent material witness instruction should not be argued until after the court has instructed the jury or notified counsel that the court will instruct the jury as to the instruction. In order for the absent material witness instruction to apply, the court must hold a jury out, the court must find that the witness

6

who has failed to be called by the party is in the exclusive control of the party failing to call him, that the witness is unavailable to the other party, and that the witness is material to the claim being raised. Once again, do not argue this instruction prior to the trial judge instructing the jury or notifying counsel that the judge will instruct the jury as to the absent material witness instruction.

Slide 29:

Let’s move on to the second major category of arguments the courts have found to be improper in closing argument.

In State v. Goltz, the court outlined five areas of improper argument. These five areas are sometimes said to violate the defendant’s right to a fair trial or due

process.

Slide 30:

The five areas of improper argument recognized by the Goltz court are as follows: number (1) Misstating the evidence or misleading the jury; number (2) expressing a personal belief or opinion; number (3) arguments calculated to inflame the passions or prejudices of the jury; number (4) injecting issues broader than guilt or innocence of the accused or making predictions of the consequences of the jury’s verdict; and number (5) arguing facts outside the record.

We will consider each of these in turn.

Slide 31:

Number 1: It is unprofessional conduct for the prosecutor to intentionally misstate the evidence or mislead the jury as to the inferences it may draw.

Slide 32:

Let’s consider an example where this was found to occur, State v. Ashley Wheeler. In State v. Ashley Wheeler, the defendant came into a check cashing business and

presented a check and a driver’s license. The manager of the check cashing business was suspicious that the check was a forgery. He called the issuer of the check and determined that the check was in fact forged. During this phone call, the defendant left the business, leaving both the check and the driver’s license. The manager told the police that the person who had left the check was the same person depicted on the driver’s license, and testified to the same at trial. The defendant also testified at trial. She claimed that she was at home that day and that someone had broken into her car and stolen her driver’s license. On cross-examination, the prosecutor asked the defendant if anyone could verify this claim. The defendant responded that her mother was at home with her that day and could verify her whereabouts.

7

At this point, the prosecutor asked for a bench conference and stated that he had been given no notice of alibi. The defense counsel assured the prosecutor and the court that the defendant’s mother would testify only as a character witness and not as an alibi witness. Since no notice of alibi was given, the court prohibited testimony as to alibi. The defendant’s mother did testify as a character witness. At the conclusion of the trial, the prosecutor argued in closing argument “the defendant testified that her mother was her alibi. Well, her mother testified and her mother was never asked and never testified that the defendant was with her that day.” The defense objected claiming the prosecutor was misleading the jury and thereby committing improper argument.

Slide 33:

Upon consideration of the issue on appeal, the appellate court found the argument to be improper. The defendant had not intended to offer an alibi and had not filed a notice as to such. It was only on cross examination by the state, pursuant to the specific questions asked, that the defendant claimed her mother was with her at the home at the time of the commission of the offense. Since this issue was raised by the state, and not by the defense, and then the state complained at the bench conference that the defense could not ask about alibi because no notice had been filed, it was improper for the state to argue that the defense had failed to ask the mother about the alibi. Such, under the circumstances and facts of the case, was misleading to the jury.

Slide 34:

Let’s consider another allegation of misleading the jury or misstating the evidence, State v. Morris March.

This case involved a homicide committed in the penitentiary. Earlier that day, a basketball game involving the victim, the defendant, and other prisoners had taken place. During the basketball game, tempers flared. The victim called the defendant an unflattering name. After the game had ended, and the prisoners had returned to the general population area, the victim was approached by the defendant, and the defendant stabbed the victim. An eyewitness in the case was inmate Hannah. Inmate Hannah testified at the preliminary hearing as to all of the events that had occurred that day. However, when the case approached trial, inmate Hannah notified the prosecution of his intent not to testify. At trial, inmate Hannah was called as a witness. Inmate Hannah took the stand and refused to testify. Even with threat of contempt, inmate Hanna persisted that he would not testify.

Based on the unavailability of witness Hannah, the prosecution then moved to admit the preserved preliminary hearing testimony pursuant to Tennessee Rule of Evidence 804(b)(1). The court permitted the introduction.

During the trial, the defense argued that the homicide was justified under the theory of self-defense. At closing argument, the prosecutor argued that the evidence contained no

8

facts which would support the theory of self-defense. The defense objected claiming that because the victim had called the defendant a name, that the prosecutor was misstating the facts and misleading the jury and therefore committing an improper argument.

Slide 35:

In response to the defendant’s objection, the trial judge gave a curative instruction which simply said “ladies and gentlemen, you will decide this case from the proof you have heard from the witness stand.”

Slide 36:

In considering the issue on appeal, the appellate court applied the two-part test found in State v. Sexton. First, was the conduct intentional. Second, how egregious was the misstatement of the evidence or misleading of the jury in consideration of the inferences the jury may draw from the evidence.

Slide 37:

In applying the test, the court first found that in this case the prosecutor did not misstate the evidence. Second, the court found that even if facts were misstated, there was no proof that the prosecutor did so intentionally.

Slide 38:

Let’s consider some examples of arguments and determine whether they are proper or improper.

Slide 39:

In closing argument, the prosecutor states “there are three casings lying on the ground. Two bullets went through and through. One through Bernard Rogan’s leg and one through Peter Langoya’s leg. Where is the other bullet? It’s inside of Bernard Rogan’s chest.” The evidence in Rogan’s medical records showed that the doctor did not find a bullet in Bernard Rogan’s chest. Proper or improper?

The court found that the statement was improper because the evidence did not show that a bullet was found in Mr. Rogan’s chest.

9

Slide 40:

In closing argument, the prosecutor argued “the defendant shot the victim at a range somewhere between six and twelve inches from the victim’s back.” In fact, the proof showed that the wound to the back was inflicted by a shotgun at close range. However, there was no evidence that the weapon was discharged from a range of six to twelve inches from the victim’s back. Proper or improper?

The court agreed that the prosecutor misstated the evidence as to the distance of the weapon from the back of the victim, but that such misstatement did not likely affect the outcome of the verdict.

Slide 41:

So how may a prosecutor avoid misstating the evidence? First, the prosecutor should prepare the argument prior to trial to make sure that the prosecutor admits at trial all of the evidence the prosecutor intends to argue during the closing argument. However, if during the heat of the argument the prosecutor does make a statement that the prosecutor notices is a misstatement of the evidence, the prosecutor should correct the misstatement. Remember, the jury has seen the case and heard the proof. If the jury believes that the prosecutor is having to stretch the facts to meet the elements or is intentionally misstating the facts, the result is a loss of credibility for the prosecutor. This is often fatal to the State’s case.

Slide 42:

Let’s examine the next area of improper argument found by the Goltz court. Number 2, it is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

Slide 43:

Let’s consider an example where it was alleged that the prosecutor asserted his own personal belief or opinion as to the truth or falsity of testimony given during the trial, State v. James Thomas, Jr.

This was a domestic relationship case in which the victim alleged that the defendant had raped her. During the trial, the victim testified as did the defendant and the investigating detective. At closing argument, the prosecutor made the following statements: “Detective Baltz told you that more cases don’t get charged than they do. What does that say about the ones that do?” The prosecutor also said “what has the defendant said that makes sense or has a ring of truth to it?” The prosecutor also said “that’s why the victim’s story had the ring of truth.” The prosecutor also said “the account that the victim gives is not a lie.”

10

The prosecutor also said that the victim was telling the truth. Last, the prosecutor said “if the victim is not telling the truth in that interview, then give her an academy award.”

The defendant objected claiming that the prosecutor made improper comments on each of these six occasions regarding the truthfulness of the victim and the untruthfulness of the defendant.

Slide 44:

On consideration by the appellate court, the court concluded that due to the flagrant and repeated violations of the Goltz rule, that a clear and unequivocal rule of law was breached.

Slide 45:

Let’s consider another example, State v. Steve Henley. In this case, the defendant and his accomplice decided to go to the victim’s home to

collect money that the defendant claimed was owed to the defendant by the victim. The victim disputed that the money was owed. At that point in time, the defendant made the decision to kill the victim. The accomplice assisted the defendant by retrieving a shotgun from the truck and also by helping to dispose of the evidence after the crime was committed. As the defendant approached trial, the accomplice became a State’s witness. During the trial, the defendant’s attorney cross-examined the accomplice and accused the accomplice of being untruthful. In response, in closing argument, the prosecutor made the statement that he thought that the accomplice had made one of the best witnesses that the prosecutor had ever seen.

The defendant objected claiming that the prosecutor was asserting his own personal opinion or belief as to the truth or falsity of a witness.

Slide 46:

Issues of credibility are to be resolved by the jury. In evaluating the case, the court found that in addition to the prohibition of the prosecutor giving a personal opinion of the untruthfulness of the defendant’s witnesses, it is also improper for a prosecutor to vouch for, or bolster the credibility of the State’s own witnesses through personal opinion.

The court noted that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor’s office and undermine the objective detachment that should separate a lawyer from the cause being argued.

Slide 47:

11

As a result, the court concluded that a prosecutor’s personal opinion of the evidence, favorable or unfavorable, is not for argument.

Slide 48:

Let’s consider another example, State of Tennessee v. Marcus Smartt. In this case, the mother’s boyfriend was alleged to have committed multiple acts of

aggravated sexual battery against the mother’s children under the age of thirteen. During the trial, the mother testified, the defendant testified, the victims testified, and as character witnesses, the defendant’s brother and mother also testified.

During the closing argument, the prosecutor made numerous comments relating to the motivations that various witnesses would have to be truthful or untruthful. For instance, the prosecutor noted the embarrassment that the victims felt, and the close ties between the families, as well as the awkwardness that resulted from the allegations. The prosecutor asked the jury why the victims would fabricate such accusations. The prosecutor asked if the jury could see any reason why the victims’ mother would testify falsely regarding the defendant’s behavior. The prosecutor referred to the defendant’s testimony and noted that the defendant had offered no explanation during his testimony for the acts alleged. The prosecutor also noted that the defendant’s mother’s testimony might have been motivated by the partiality she felt for her son. Also, the prosecutor noted that the defendant’s brother never questioned the honesty of the victims or of their mother and noted that the victims did not contradict themselves during their testimony.

The defendant objected claiming that the prosecutor was asserting his personal belief as to the truth of the testimony of the witnesses.

Slide 49:

In evaluating the issue, the appellate court noted that a prosecutor’s closing argument may be based upon the reasonable inferences drawn from the evidence.

Slide 50:

The court concluded that as stated the comments did not interject the personal opinion of the prosecutor as to the truth of the witnesses, but instead were statements summarizing the evidence and highlighting the way in which the jury might draw inferences from that evidence.

Slide 51:

Let’s consider whether the following examples are proper or improper arguments.

Slide 52:

12

If an argument is predicated by the words “I think” or “I submit” that does or does not necessarily indicate an expression of personal opinion.

The answer is that these words do not necessarily indicate the expression of a personal opinion. Courts must consider the facts of each particular case as well as the argument made to determine whether the statement is proper or improper.

Slide 53:

During the trial, defense counsel challenged the credibility of Detective Chambers by calling attention to his prior relationship with Mr. Goodman and by pointing out that the initial crime scene investigation did not reveal all of the spent bullet casings. In response, the prosecutor remarked, “I can’t imagine how Wade Chambers lied to you.” Proper or improper?

The answer is that the comment was improper. Stating that he could not personally imagine that Detective Chambers could lie rather than pointing to the specific evidence which tended to undermine the contention of the defense counsel constituted vouching and therefore was improper.

Slide 54:

What if a prosecutor states in closing argument that he does not bring a case unless he believes in it? Proper or improper?

The answer is that the comment is improper. Just as a prosecutor may not state a personal opinion as to the truth or falsity of the testimony of a witness, neither may a prosecutor state a personal opinion as to the defendant’s guilt. Vouching for a case, just a vouching for a witness, is improper.

Slide 55:

In virtually every trial, the jury must determine the credibility of the witnesses to decide the issues being tried. How may a prosecutor ethically argue the credibility of witnesses without running afoul of the prohibitions of the Goltz case?

First, consider the instructions that the judge gives the jury regarding the credibility of witnesses. Many times these instructions guide the statements a prosecutor may make during his closing argument. For instance, the instructions tell the jurors to consider whether the witness could see or hear clearly, the witness’ perspective, how the testimony of the witness fits with the other evidence, whether the witness was impeached, as well as whether the jury believes that the witness was mistaken or deliberately lied. As early as voir dire, have the jury commit to use their common sense and ask why witnesses might testify inconsistently. Once a number of reasons are stated, inform the jury that it is their job to be the finder of fact. Implore them to use their common sense and remind them that the judge will tell them that they are free to believe all, part, or none of what a witness has to say. Then, in closing argument, instead of calling the witness untruthful, or a liar,

13

instead highlight the number of times their statements were inconsistent with the rest of the proof. Highlight the improbable nature of their statements using cynicism, and point to any bias or motive that they have which calls the testimony into question. Remind the jury of any impeachment that occurred and simply say “but you are the finder of fact and it is your duty to decide which witnesses you believe and that you may believe all, part, or none of a witness has to say.” You have made your point without crossing the line.

Slide 56:

Likewise, pointing out to the jury consistencies between the testimony of various State witnesses, or between a State’s witness and the physical evidence introduced in the trial bolsters the testimony of the State’s witness. It is not vouching to point out the consistencies between the proof.

Slide 57:

Let’s turn to the third area of improper argument recognized by the Goltz court. The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

Slide 58:

Consider State of Tennessee v. Andrew Thomas. In this case, the two defendants laid in wait outside of a Walgreens while the driver of an armored truck went into the Walgreens to retrieve the money. When he returned to the truck, the two defendants committed a robbery and a homicide. The two defendants were joined at trial. At trial, the prosecutor, in his closing argument, repeatedly referred to the defendants as “Greed and Evil”. For instance, the prosecutor made statements such as “on that fateful day, Greed and Evil came knocking. How are we to protect ourselves from Greed and Evil?”

The defendants objected claiming that the argument was calculated to inflame the passions or prejudices of the jury and therefore improper.

Slide 59:

The reviewing court agreed. Generally, it is prohibited for a prosecutor to call a defendant a name, other than referring to him as the defendant or calling the defendant by his proper name.

Slide 60:

Let’s consider another example, State of Tennessee v. Torrez Talley.

14

This case began with a telephone call to a young lady by an acquaintance asking the young lady to come to his residence. The young lady and her boyfriend went to the residence. Once there, the acquaintance and the friends of the acquaintance began to assault the young lady and her boyfriend. They demanded to know the whereabouts of the boyfriend’s brother. They claimed the boyfriend’s brother had orchestrated a break-in of the residence and that they intended to retaliate against the boyfriend’s brother. Due to the continued assaults, the young lady agreed to get the boyfriend’s brother to come to the residence. Once the boyfriend’s brother arrived at the residence, the acquaintance and the acquaintance’s friends committed numerous acts of assault and torture against the boyfriend and his brother. They then forced the men into the trunk of their car and told them they were going to take them out and kill them. However, the police were alerted to the plot and stopped the vehicle, rescuing the victims and arresting the defendants.

At trial, during closing arguments, the prosecutor made the following statements to the defendants: “You won, they’re scared”. The prosecutor also referred to the defendants as robbers and kidnappers. The prosecutor referred to the defendants as hatred, vengeance and evil. And finally, the prosecutor told the jury that it’s hard to turn a case over to you, so do the right thing in this case.

The defendants objected claiming that the arguments were calculated to inflame the passions or prejudices of the jury and therefore were improper.

Slide 61:

In considering the objection, the appellate court noted that it is well settled that a prosecutor should refrain from an argument designed to inflame the jury and should restrict his commentary to matters in evidence or issues at trial. Based on the comments made by the prosecutor, the court found that the argument was improper.

Slide 62:

Let’s consider some examples of whether the argument inflames the passions or prejudices of the jury.

Slide 63:

The prosecutor states “the evidence presented at trial showed defendant used his ‘Christian lifestyle’ and ‘dazzled the victims, if you will, with his friendship, his spirituality, and his ability to make money.’” Is this argument proper or improper?

In this case, the court found that the prosecutor’s comments were proper because they were a summary of the testimony of the victims who had repeatedly explained to the jury that they trusted the defendant in part because of his Christian lifestyle.

Slide 64:

15

During the trial, defense counsel repeatedly referred to Ms. Thornhill as “Ms. Thornell”. The prosecutor in his closing argument stated that the defense attorney referring to Ms. Thornhill as Ms. Thornell at various points throughout the trial shows how little the defendant actually cares about these victims.

The court found that this was clearly improper. It was not the actions of the defendant but the actions of the defendant’s attorney. The court stated “we cannot determine why the prosecutor commented on defense counsel’s misstatements other than to inflame the jury and prejudice them against the defendant.”

Slide 65:

During closing argument, the prosecutor embarked on a lengthy tirade depicting the angel of death as attending and witnessing the murders in this case. Proper or improper?

The court found that this argument constituted an improper inflammatory remark designed to incite the religious fervor and passions of the jury.

Slide 66:

During closing argument, the prosecutor used a circular saw, which was turned on, during the rebuttal argument to demonstrate how the defendant dismembered the victim’s body in the presence of the child. Proper or improper?

The court found that this demonstration was proper. Although it was gruesome, it expressed to the jury the evidence that was testified at trial and was not calculated to inflame the passions or prejudice of the jury.

Slide 67:

So how may a prosecutor argue his case without crossing the line into improper argument? This is a difficult area because there is great discretion in the courts. Courts have held that prosecutors may use forceful language and that each side has wide latitude to argue their cases. Generally, areas that are out of bounds involve calling the defendant names or quoting the Bible. Quoting the Bible is seen as an appeal to religious obligation rather than application of fact to law. It is acceptable to tell the story from the victim’s perspective, even using an ominous or sympathetic tone. When referencing the defendant, calling him ‘this defendant’ is permissible. Pointing at the defendant is permissible, and even expected by most jurors, unless the pointing occurs in the context of statements that suggest the defendant should have testified or not exercised his right to remain silent. The key to avoiding this pitfall is to draft the argument before trial and to permit a colleague to read over it. If concerns are raised by anyone involved, err on the side of caution and rephrase.

Slide 68:

16

Let’s examine the next area that the Goltz court found to be improper argument. Number 4, the prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused, or by making predictions of the consequences of the jury’s verdict.

Slide 69:

Let’s consider an example, State of Tennessee v. Ronnie Cauthern. This is a case involving an aggravated burglary, a rape, and a homicide. At trial, in

closing argument, the prosecutor referred to the defendant as the angel of death, and on numerous occasions referenced various serial killers. The prosecutor also quoted the Bible, and at one point in argument, asked the jury to do its duty and send a message to the community.

The defendant objected on numerous grounds claiming that the argument was improper.

Slide 70:

For multiple reasons, the reviewing court found the argument to be improper. One of the reasons cited focused on the statement that the jury should do its duty and that its verdict should send a message to the community. The court found that this constituted a plea for general deterrence, and in so doing injected issues broader than the guilt or innocence of the defendant into the trial and therefore that argument was improper.

Slide 71:

Let’s consider another example, State of Tennessee v. Robert Fusco. In this case, the defendant devised a plan where he would break into the home of a

jewelry store owner, and await his return from work. He intended to abduct the owner, force the owner to return to the jewelry store, open the safe, and provide the defendant with the money and jewelry found therein. The defendant was successful in breaking into the home. Once inside, he waited until the owner returned from work. At that time, the defendant came from his hiding place and first confronted the owner’s wife. He seized her at gunpoint, and at this point, the owner went to get his own gun. The defendant threatened to kill the wife and attempted to take her Rolex watch. The defendant shot the wife in the arm and in the chest. The defendant then fled the premises and was apprehended later.

During the closing argument, the prosecutor paused on two different occasions for a period of approximately forty-five seconds, which was the length of the encounter between the defendant and the victim. Preceding the pause, the prosecutor asked the jurors to listen to their heart, and consider how the victim felt during this encounter, and also to consider what decisions could have been made during this forty-five seconds. The defendant objected claiming that by committing these pauses the prosecutor was in

17

essence asking the jury to predict the consequences of the jury’s verdict as to how it affected the victim.

Slide 72:

The reviewing court found no error in the prosecutor’s actions. The court stated that although there may be no commentary on the consequences of an acquittal, the prosecution may point out the gravity of a particular crime and emphasize the importance of law enforcement.

Slide 73:

The court further noted specifically that the prosecutor’s actions and comments did not suggest that the jury focus on the consequences of an acquittal, and that instead, the forty-five second pause was used to establish that a sufficient amount of time existed to support a kidnapping conviction.

Slide 74:

Let’s consider whether the following arguments are proper or improper.

Slide 75:

During his closing argument, the prosecutor argued the following: “you guys are here for a reason. You, the twelve of you that are going to be going back there, all of your diverse experiences, and you have a chance to do something for this community.” Proper or improper?

The comment was improper. Requesting that the jury do something for this community injects an issue broader than the guilt or innocence of the defendant into the trial.

Slide 76:

In his closing argument, the prosecutor argued: “if our system of justice is going to continue to operate here and this community be as strong as it is, these individuals need to go to prison for the rest of their lives.” Proper or improper?

The comment was improper. A community focus injects an issue broader than the guilt or innocence of the defendant into the trial.

Slide 77:

18

So how may a prosecutor argue his case effectively and avoid this pitfall? Prosecutors may not use phrases such as “send a message to the community”, “do your duty for the community”, or “without guilt there will be chaos in the community”. The problem is the improper community focus. However, it would be proper for a prosecutor to argue “when you go back to that jury room, I ask that you return a verdict that sends a message to this defendant that his conduct will not be tolerated.” It is also permissible to ask the jury to do their civic duty and apply the facts to the law and render the one true and just verdict. It is even permissible to argue “ladies and gentlemen, you can’t ask any more of the police. They did their job. They gathered the evidence. They brought it to the prosecutor. The prosecutor has done his job. He has presented that evidence to you in this trial, and we have met our burden, but in the end the law is just words on paper. It is when you do your job as jurors, and return the proper verdict, that this law has meaning to this defendant. Each of those is a proper argument because it does not contain a community focus or a focus broader than the guilt or innocence of the defendant at this particular trial.

Slide 78:

Let’s consider the last area of improper argument found by the Goltz court. Number 5, it is unprofessional conduct for a prosecutor to intentionally refer to, or argue facts outside the record, unless the facts are matters of common public knowledge.

Slide 79:

Let’s consider an example, State of Tennessee v. Allen Bowers. This was a case involving the rape of a child. At trial, the child testified and was cross-

examined regarding the child's failure to disclose the act constituting the rape to the child’s parents. In closing argument, the defense again argued that the child failed to disclose the act to the child’s parents, and therefore the child should not be believed. To rebut this claim, the prosecutor argued that the TBI agent investigating the case has instructed the child not to disclose the act to the child’s parents. However, neither the TBI agent, who did not testify at trial, nor the child, who did testify at trial, testified that the TBI agent had instructed the child not to disclose the act to the child’s parents. Therefore, there was no proof in the record that the TBI agent had instructed the child not to disclose the act.

On appeal, the state acknowledged that the argument was improper because it contained facts outside of the record.

Slide 80:

19

Let’s consider whether the following argument were proper or improper.

Slide 81:

At trial, in the state’s rebuttal argument, the prosecution conducted a demonstration wherein it utilized a door that had been manufactured and hung on a moving frame to illustrate the manner in which the state believed the crime occurred. It did not use the door in its initial closing statement, but instead waited until the defense had finished its closing and then chose to reenact the crime. Proper or improper?

The court found that the demonstration was proper. The demonstration itself was based on facts in evidence and was not otherwise improper. It was not improper because the state waited until the rebuttal argument to rebut and reenact the crime.

Slide 82:

In his closing argument, the prosecutor argued “you can’t shoot someone in the back and claim self-defense. Never in the history of mankind has someone been shot in the back and the shooter was defending himself.” Proper or improper?

The court found the argument to be improper. The evidence at trial did not include all the events in the history of mankind so this particular phrase in the prosecution’s argument was not based on the evidence introduced at trial.

Slide 83:

During the course of investigating and prosecuting a case, the prosecutor will learn many facts about the case. When planning closing argument, it is imperative to write out the argument prior to trial so that you may attribute every fact you wish to argue to a testifying witness. If you cannot do so, you need to call an additional witness to get the fact you are missing into the record, or if unimportant, strike the fact from the argument. Getting in all the facts you intend to argue is a direct result of pre-trial writing out the argument.

There are occasions when a fact doesn’t seem important until it becomes an issue at trial. It is acceptable to recall a witness who has previously testified in either direct or rebuttal proof if necessary to get an important fact before the jury. Be prepared to explain to the court in a jury out the proof to be solicited and why it is now relevant and material. Obviously, a list of witness cell phone numbers is necessary as is the assistance by an investigator, a victim witness coordinator, support staff, or another prosecutor.

Slide 84:

20

This presentation has covered the primary areas in which the courts have found closing arguments improper. Remember, it is impossible to set out in detail what can and cannot be said in closing argument. Adhering to the Goltz prohibitions and avoiding comment on the defendant’s right to remain silent will help to assure that error is not committed.

Slide 85:

However, if error is found, it is also important to realize that not every error results in reversal of the conviction.

Slide 86:

Let’s begin our look at appellate review by determining the situations in which the appellate court will review an allegation of error. The first consideration for appellate review is whether the defense made a contemporaneous objection to the comment at trial. If no contemporaneous objection was made, the error is likely waived. If the defense at trial made a contemporaneous objection to the comment, and now raises the alleged error on appeal, the court will determine if error occurred. And if so, will evaluate to determine if the error is harmless error. If harmless, reversal is not mandated.

However, even if no contemporaneous objection was made, if the error is so egregious as to meet the more stringent plain error standard will the error be reviewed despite the defense’s failure to object at trial.

Slide 87:

If an error is found to be harmless, reversal is not mandatory. It is the state’s burden to establish that the error is harmless, and the error must be shown to be harmless beyond a reasonable doubt.

Slide 88:

To determine whether or not an error is harmless beyond a reasonable doubt, the appellate court considers whether the conduct was so improper or the argument so inflammatory that it affected the verdict to the defendant’s detriment.

Slide 89:

In considering whether an error was harmless beyond a reasonable doubt, the court considers five factors. First, the facts and circumstances of the case. Second, any curative measures undertaken by the court or the prosecutor. Third, the intent of the prosecution. Fourth, the cumulative effect of improper conduct and any other errors. And fifth, the relative strength or weaknesses of the case.

Slide 90:

21

Let’s review the cases that were studied in this presentation to determine how the appellate court applied the harmless error standard.

In State v. Noura Jackson, the prosecutor stated “just tell us where you were Noura, that’s all we ask, just tell us where you were”. The court determined that the proof of guilt was not particularly strong, and that the comment was not harmless beyond reasonable doubt, and therefore the conviction was reversed.

In State v. Adam Robinson, the prosecutor argued in closing that the defendant had not, through any of his witnesses, offered any explanation for what the defendant was doing behind the building with the child that day. The reviewing court determined that the proof of conviction was not particularly strong, and also found that the comment was not harmless beyond a reasonable doubt. Therefore, the conviction was reversed.

In State v. Transou, the prosecutor stated that the defendant would not even admit to the marijuana found in his own back pocket. The court reviewing the statement, although finding it to be an improper statement, found the error to be harmless due to the overwhelming proof against the defendant.

In State v. Ashley Wheeler, the court found the prosecutor’s comment on the mother’s failure to testify as an alibi witness to be an improper comment considering the facts and circumstances of the case. The court in reviewing the proof of the case determined that the error was not harmless beyond a reasonable doubt and reversed the conviction.

In State v. James Thomas, the court found it improper that the prosecutor had repeatedly inserted his personal opinions as to the truth and falsity of the testimony of witnesses. Due to the numerous flagrant violations, the court found that the error was not harmless beyond a reasonable doubt and reversed the conviction.

In State v. Steve Henley, the prosecutor exclaimed to the jury that the accomplice who testified made the best witness that the prosecutor had ever seen. The appellate court considered this comment improper, but found the proof of guilt against the defendant to be overwhelming and therefore found that the error was harmless beyond a reasonable doubt.

In State v. Torrez Talley, the prosecutor told the defendants that they had won, and that the victims were scared. The prosecutor called the defendants robbers and kidnappers, and told the jury that it was difficult to turn a case over to the jury and asked the jury to do the right thing. In light of the overwhelming proof of guilt, the court found that these comments, although improper, were harmless beyond a reasonable doubt.

In State v. Thomas, the prosecutor repeatedly referred to the two codefendants as Greed and Evil throughout the closing argument. Despite these comments, the court found that the proof of guilt was overwhelming as to the defendants, and also found that the error was harmless beyond a reasonable doubt.

In State v. Ronnie Cauthern, the prosecutor asked the jury to do its duty and send a message to this community. Although there were numerous improper comments by the prosecutor, the court reviewing the case determined that the proof of guilt was so strong

22

against the defendant, that the improper comments were harmless beyond a reasonable doubt.

Last, in State v. Allen Bowers, the prosecutor had argued to the jury that the TBI agent investigating the case had told the child victim not to report the rape to her parents. Despite these facts not appearing in the trial record, the court found that the error was harmless beyond a reasonable doubt and upheld the conviction.

Slide 91:

In cases where the defendant fails to make a contemporaneous objection to the improper comment, in order to obtain relief on appellate review, the defendant must establish that the error meets the more stringent plain error standard.

In State v. Atkisson, the court delineated five factors to be considered to determine whether the plain error standard has been met. First, the record must clearly establish what occurred at trial. Second, a clear and unequivocal rule of law must be breached. Third, a substantial right of the accused must be adversely affected. Fourth, the accused did not waive the issue for tactical reasons. And Fifth, consideration is necessary to do substantial justice.

It is only when all five factors are present that the plain error standard is met and the defendant may have the error considered despite the failure to object at trial.

Slide 92:

I hope that this presentation has been helpful to you as you consider drafting your closing arguments for trial. Before I conclude, let me give some final brief practice points which apply to closing argument generally.

Slide 93:

Always draft your closing argument in the trial preparation phase of your case. This will highlight to you which witnesses you must call to get all the facts into evidence that you wish to argue in closing. Every fact must have a witness. If you are faced with a tactical decision of whether to call a witness or not, the answer is to call him, unless the witness’ testifying will create a substantial problem in the case which outweighs the value of the fact sought to be proven. In that limited exception, don’t call the witness, and instead either strike the fact from your closing argument or prove it through a different witness.

Slide 94:

23

The ancient Greeks believed that a persuasive argument had three parts, Pathos, Logos, and Ethos. Pathos means sympathy. In Pathos, tell the story from the victim’s perspective. For impact, do not use power point during Pathos so the jury focuses on your words. Display the most powerful physical exhibit at the key point of Pathos. Use pauses and change body position at reflective moments or to draw the jury into your next statement, but don’t overdo it. Logos means logical. Here, argue logic shows you have met your burden of proof. Explain the jury instructions and the elements of the offense. Recap the testimony and the exhibits, and replay key video segments. Point out which facts prove each element. Use power point. Ethos means ethics, and is designed to communicate that in this case, conviction is the right thing to do, and is justice. Don’t use power point during the Ethos portion. Conclude the argument by asking the jury to convict the defendant of exactly what the proof has shown that he did, and return a verdict of guilty on every count. The most important words are the scripted opening line and scripted closing line. They demonstrate why this case is important and why the jury should care about it.

Slide 95:

Always draft the beginning and ending portion of your rebuttal argument. Prepare your opening line and a discussion of the one, two, or three strongest pieces of evidence, noting how the defense theory is insufficient to explain away that proof. Then go to your notepad and comment on some of the things the defense has argued in their closing argument. You don’t have to respond to everything said, but respond to the ones that hurt your case, and especially highlight the particularly weak arguments by the defense that the jury already isn’t believing. Once completed, leave the notepad and deliver the final scripted thought you want the jury to carry into the jury room, and sit down on that thought. There is no need to ask again to convict.

Slide 96:

Always make eye contact with all of your jurors, and project an air of confidence in your case. Never read your whole argument from a piece of paper. If you must read, put the bullet points on a power point presentation and project the presentation on the wall of the courtroom so it is less obvious that you have to read it.

Slide 97:

24

As you discuss errors in closing argument, never call it prosecutorial misconduct, but rather prosecutorial error. When a defense attorney commits an error, it is not defense misconduct. When the court commits a trial error, it is not called judicial misconduct. The defense motions and court opinions saddle prosecutors with an unjust label. Error is an honest mistake. Misconduct implies an intentional and deliberate nefarious act to cheat. I know of no prosecutor committing these errors on purpose. We should all draw attention to this distinction every single time the word misconduct is used in any written document or courtroom in this country, especially at the appellate level.

Slide 98:

And finally, always remember, what we do is important. We may strike hard blows, just not foul ones. Go get em. I thank you for your time and attention.

Slide 99:

No Narration.

25