Improper Closing Arguments During Criminal Trials

There has been an interesting discussion this week in the blogosphere about whether it’s appropriate for a prosecutor to urge the jury during closing argument to “send a message” with its verdict. See, for example, this discussion at the Volokh Conspiracy: I worked as a prosecutor in Washington, D.C., where such arguments were clearly impermissible. Being careful not to make a misstep during closing argument weighed very heavily on the minds of the attorneys in my office because the appellate court in DC kept very tight reins on prosecutors. Perhaps the most striking example was that you could not say a defense witness lied during closing argument. You could say the testimony was incredible in light of the other evidence in the case, or inconsistent with the testimony of other witnesses, but we were warned in no uncertain terms not to use the word “lie” in closing argument. In keeping with the prohibition that you could not tell the jurors to send a message, you also could not tell jurors they were the “conscience of the community.” Of course, prosecutors have made some pretty remarkable statements in closing arguments over the years. Some of my personal favorites are (1) the prosecutor who stated about a witness “I believe him from the bottom; I swear I believe him from the bottom” and (2) the one who told the jury he “did not go to law school to put innocent men in the penitentiary.” Comparing a defendant to Charles Manson is not surprisingly no good either. Anyone else have any particularly striking examples?

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3 Responses

  1. wheeler says:

    we’re handling an appeal of a capital case from south alabama where the da put the victim’s bloody clothes in a chair and conversed with them during close. good stuff.

  2. wheeler says:

    sorry to comment again, but i thought you might want to see the actual quotes. this is from mcnair v. state, 653 so.2d 320 ( 1992):

    “[MR. VALESKA:] And we want an eye for an eye and a tooth for a tooth for you, McNair. For what? Here she is (indicating [towards victim’s bloody clothes in chair at counsel table]). Here’s Mrs. Riley.

    “MR. DECKER [defense counsel]: Objection.

    “MR. VALESKA: Go ahead and object. Object all you want. This is Mrs. Riley (indicating).

    “MR. DECKER: We object, your Honor.

    “THE COURT: Gentlemen, let’s calm these arguments and the objections down. I think he can utilize the evidence in the case.

    “MR. DECKER: Yes, your Honor. But to display them in such a fashion is to do nothing. And for the record, your Honor, he has got an empty chair and is placing clothing in the chair to indicate or form a semblance.

    “THE COURT: Mr. Valeska, I would be careful in that part of your argument.

    “MR. VALESKA: Judge, how can they sit here and argue about Christ and Jesus, and I can’t show the jury a display and sit down the clothes and say, this is what’s left of Mrs. Riley’s body. That’s not improper.

    “THE COURT: I’m just-

    “MR. VALESKA: Yes, sir. I’ll do it this way then. I’m not going to argue with the judge.

    “MR. DECKER: For the record, could we have a-

    “THE COURT: Your objection is overruled.

    “MR. DECKER: Thank you.

    “MR. VALESKA: And I’m not afraid to hold it. I’m not afraid to touch it. This is Mrs. Riley (Indicating).

    “MR. DECKER: We object, Your Honor, to the representation that that’s Mrs. Riley. That is not Mrs. Riley. That is blood-stained clothing. Improper argument.

    “THE COURT: Overruled.”

    the court of criminal appeals said it was improper, but – yada yada yada – upheld the conviction.

    btw, the da – mr. valeska – is still going strong. if you want a fun exercise, do a westlaw search in alabama for “valeska” and then some combination of “misconduct” “batson” “improper argument” or “brady.”

  3. Better Remain Anonymous says:

    This is a bit off your point but one of the problems I see is that many prosecutors don’t cross-examine well, especially when they cross-ex defendants. Too often they argue with the witness, ask “why” questions, or belabor a point unnecessarily to try to get the witness to admit what he’s denied instead of just trying to lead the witness into an absurdity, and making the point on closing argument.

    (I’ll be anonymous for this one)