Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Trial TacTics

Proper and Improper Closing ArgumentBY sTEPHEN a. salTZBUrG

Every experienced trial lawyer knows that in closing argument counsel are permit-ted to argue about the evidence presented

and to urge jurors to accept or reject the evidence and the inferences that might be drawn from it for whatever reasons counsel put forward. It is not unusual for counsel to suggest analogies that might appeal to jurors or to quote from a source that jurors might find persuasive. There are lim-its, however, to what may be legitimately done in closing argument. United States v. Wright, 625 F.3d 583 (9th Cir. 2010), illustrates this well.

The FactsJason Wright was convicted of transportation and possession of child pornography. The case arose when FBI Special Agent Robin Andrews conduct-ed an undercover search on a file-sharing program known as an mIRC (Internet Relay Chat). Andrews came upon the user name “azgymguy2” in two chat rooms, “100% teensexpics” and “gayteenpics.” An-drews typed in a “trigger” that established a connec-tion with azgymguy2’s file-trader and downloaded 13 files, three of which were child pornography. Later, Andrews repeated the connection and down-loaded 59 files, 21 of which were child pornography. She conducted three more undercover sessions be-fore she matched Wright’s home address with his In-ternet connection. The FBI executed a search war-rant at Wright’s home and seized Wright’s desktop computer and a laptop.

About a week after the search, Wright’s room-mate Shawn Dittfurth disappeared. At trial

Wright claimed that it was Dittfurth who was re-sponsible for possession of the child pornography found on Wright’s desktop computer. The jury rejected the defense and found Wright guilty.

On appeal, Wright argued that the prosecutor’s closing argument amounted to misconduct. The court of appeals accepted the argument in part and rejected it in a number of respects.

The improper closing argumentWright asserted on appeal that the prosecutor engaged in misconduct during closing argument by improperly asserting his personal disbelief of the defense and submitting his own testimony to the jury. The court of appeals found the following “trifecta” argument to be “the most troubling”:

Now, I’ve been handling these cases for a number of years and I’ve seen where de-fense—where the defense of it was my room-mate has been advanced, and I’ve seen the de-fense advanced that it was some sort of hacker or trojan or virus, something along those lines, and then I’ve also seen, well, somebody did something inappropriately, the interview, this, that, something along those lines.But never have I seen the trifecta, all three in this same place. This is very—this is un-believably remarkable that you guys got to witness this. So we’re betting on Shawn Dittfurth to win, the FBI to place, and I guess some computer hacker, trojan, virus mystery man to show, but the problem is none of those things ever showed.

(Id. at 610.)

The court added that the prosecutor made sev-eral other references to his own impressions of the evidence. For example, the prosecutor made the following argument:

Of course [Wright’s] denying that he said he knew he should not have child pornography on his computer. I’m not sure why he’s deny-ing that because if somebody asked me should you have child pornography on your server, on your computer, I would say of course not, but here he is saying no, no, no, we weren’t—there was no child pornography and I never said anything about how I knew I shouldn’t have child pornography on this computer.

(Id. at 610-611.)

sTEPHEN a. salTZBUrG, a past chair of the Criminal Justice Section, is the Wallace and Beverley Woodbury University Professor at George Washington University School of Law in Washington, D.C., and contributing editor to Criminal Justice magazine. He is also author of the book, Trial Tactics, Second Edition (2009, American Bar Association), an updated and expanded compilation of his columns.

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Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The court focused mostly on the trifecta argu-ment and concluded that “[w]hile it is probably not correct to label this misconduct as vouching, . . . the prosecutor’s comment only gave the jury his im-pression of the evidence in the case, but it improp-erly introduced evidence outside the record—i.e., the prosecutor’s experience with similar cases—as a means of commenting on the defense’s case and Wright’s credibility.” (Id. at 611.) Thus, the court rejected the argument that the prosecutor engaged in improper vouching, but it concluded that the ar-gument was “certainly improper” because it deni-grated the defense as a sham. (Id.)

The court cited United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999), and United States v. Her-manek, 289 F.3d 1076 (9th Cir. 2002), in concluding that “the prosecutor’s ‘trifecta’ comment was im-proper” and “the prosecutor’s repeated references to how he viewed the evidence were also improper.” (625 F.3d at 612.) Quoting from Hermanek, 289 F.3d at 1100, the court wrote as follows: [P]rosecu-tors’ arguments not only must be based on facts in evidence, but should be phrased in such a manner that it is clear to the jury that the prosecutor is sum-marizing evidence rather than inserting personal knowledge and opinion into the case. (Id.)

improper VouchingThe court explained the difference between im-proper vouching and the conduct of the prosecu-tor in Wright’s case. Improper vouching occurs when a lawyer places the prestige of the govern-ment behind a witness by providing personal as-surances of the witness’s credibility or when a lawyer suggests that the testimony of a witness is supported by information outside that presented to the jury. Wright’s complaint was not really im-proper vouching; it was that the prosecutor deni-grated the defense and the defendant rather than vouched for government witnesses.

Proper argument as to credibility Wright attempted to persuade the court that the prosecutor improperly pitted Wright’s cred-ibility against the government’s witnesses, as the court had found in United States v. Combs, 379 F.3d 564, 567–68 (9th Cir. 2004) (holding that it was improper to ask the defendant point blank whether the testifying agent lied and for the pros-ecutor to make a closing argument in which he several times referred to the defendant calling the agent a liar, and impermissibly referring to the

fact that if the agent lied he would have commit-ted perjury and would have been “flush[ing] his ten-year career down the toilet.”)

The court rejected the argument and found that Combs was distinguishable. The prosecutor merely contrasted Wright’s testimony with that of Agent Andrews and a detective. He did not inject his per-sonal opinions as to credibility, which the court had found to be improper in United States v. Gar-cia-Guizar, 160 F.3d 511 (9th Cir. 1998). The court cited United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991), for the proposition that “[i]n a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”

striking “Hard Blows”Wright complained that the prosecutor improperly in-sulted him several times during cross-examination and in closing argument. The court rejected the argument and offered five examples of prosecutorial comments that struck “hard blows” but were not improper:

(1) [R]eferring to Wright’s statement that he used pornography to avoid being promiscu-ous, the prosecutor stated “Like are those the only two options? I mean couldn’t you be in a committed relationship?”

(2) [T]he prosecutor asked Wright during cross-examination, “You’re proud of your collection of child pornography, aren’t you?” (Wright responded: “No, it actually disgusts me that people would trade such things.”)

(3) [T]he prosecutor referred to T-shirt slo-gans Wright came up with for his business Offensive Ts.com.

(4) [T]he prosecutor told the jury that Wright’s practice of burning blockbuster movies was illegal.

(5) [T]he prosecutor responded to the de-fense’s theory that law enforcement was “out to get him” by telling the jury that Wright was not Pablo Escobar or “the Larry Flynt of child pornography.”

(625 F.3d at 613.)

The court firmly stated that “[n]ot one of these statements was improper.” (Id.) The prosecutor’s com-

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Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

FEdEral rUlEs alErT

ments were based on the evidence and he was entitled to draw all reasonable inferences from the evidence.

Harmless ErrorThe court found that the statements by the pros-ecutor that amounted to improper comments, standing alone, were harmless error. The court concluded that, although “[t]he ‘trifecta’ comment was by far the most egregious statement made by the prosecutor, “[t]he improper statements were relatively isolated incidents over the course of a ten day trial.” (Id.) The court added that the effect of the trifecta argument was mitigated by an ex-cellent rebuttal by defense counsel that focused on the three defenses raised by Wright; noted that the jury acquitted Wright on eight counts, which indi-cated that it did not discredit Wright’s testimony; and concluded that “the prosecutor’s misconduct was fairly mild and was mitigated by the court’s general jury instructions, given at the beginning of the trial, as well as at the end of the prosecutor’s closing argument and during the final jury instruc-tions that ‘[a]rguments and statements by lawyers are not evidence.’” (Id. (quoting United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993)).

The court observed, however, that it also found

error in the exclusion of 404(b) evidence; it was remanding the case for fact-finding on Wright’s motion to exclude statements made to Agent An-drews and a detective; and therefore, it would not address in the initial appeal Wright’s argument that cumulative error required reversal.

lessons1. It is permissible for prosecutors to contrast a

defendant’s testimony with that of government witnesses. If it is clear that the testimony of the defendant and that of the government witness-es cannot both be true, it is permissible for the prosecutor to argue that the jury should accept the testimony of the government witnesses and reject the testimony of the defendant.

2. It is permissible for prosecutors to point out prob-lems with one or more theories of defense raised by a defendant, but in doing so prosecutors can-not refer to their own experience or their own opinions because that makes them witnesses.

3. It is permissible for prosecutor to strike “hard blows” in cross-examination and to draw permissible inferences from the evidence presented in closing argument, even if those inferences also strike hard at a defense. n

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