Too many times defense counsel is trying to organize his thoughts, notes, or just relax while the prosecutor is making closing arguments. Some of the comments by the prosecutor could be improper and could cause the jury to convict our clients. We've all read transcripts or heard arguments where defense counsel sat silently while the prosecutor made improper arguments. This article is an attempt to review some of the major areas of improper closing argument by prosecutors.
All of us expect a prosecutor to fight hard and the caselaw is clear that a prosecutor "may prosecute with earnestness and vigor...But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one..."quoting from Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L. Ed. 1314 (1935).
Generally, counsel is generally given wide latitude during closing argument, and trial courts are granted wide discretion in controlling closing arguments. See State v. Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) "Notwithstanding such, arguments must be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not otherwise improper under the facts or law." State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). However, courts have a responsibility to police argument and must restrict any improper commentary." See 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995) (citing Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978)).
There are five general areas of prosecutorial misconduct relative to closing argument. I have listed the five general areas with some examples listed. The examples are where the court has said the argument was improper. Note that some of these examples were held to be harmless error and some required reversals:
1. Intentionally misstating the evidence or misleading the jury regarding permissible inferences;
Prosecutor's statement that there were no diapers found in the victim's house, when in fact, there was no evidence to indicate whether or not diapers were found, was a misstatement of the evidence and was an important point and an intentional statement. State v. Hall, 2004 Tenn. Crim. App. Lexis 232, 22-25 (Tenn. Crim. App. 2004).
Prosecutor's closing argument that the "defense seeks to do three things: to obscure the truth, to mock the truth, and to call the child a whore. That's their defense." This argument was held not temperate or predicated on evidence introduced during trial. State v. Charles Sanders, 2002 Tenn. Crim. App. Lexis 756 (Tenn. Crim. App. 2002).
Improper argument to say of defense counsel: "They are going to stand up here in a few minutes and they are going to ask you to violate your oath as a juror and disregard the law. That's what they are hired to do." State v.Taniese Wilson, 1999 Tenn. Crim. App. LEXIS 835 (Tenn. Crim. App. 1999).
2. Expressing personal beliefs or opinions regarding the veracity of testimony or evidence or guilt of the defendant;
A prosecutor should not express his or her personal opinion about the credibility of the witnesses, unless the comments are ground upon evidence in the record. State v. West, 767 S.W. 2d 387, 394 (Tenn. 1989).
It was improper for district attorney to tell the jury that defense counsel was "trying to throw sand in the eyes of the jury" and "blowing smoke in the face of the jury." State v.West, 767 S.W. 2d 387 (Tenn. 1989).
Improper for the prosecutor to state: "I don't believe that" in reference to certain testimony. State v. Beamon, 1996 Tenn. Crim. App. Lexis 753, 5-9 (Tenn. Crim. App. 1996). Also, improper to state "the Defendant is about as guilty as anyone I ever prosecuted." State v. Michael Dean, 1999 Tenn. Crim. App. Lexis 1217 (Tenn. Crim. App. 1999).
Prosecutor's statement that an officer told the truth amounted to improper vouching. Expressions of personal opinion by the prosecutor are generally prohibited as a form of unsworn, unchecked testimony which tends to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate a lawyer from the advocated cause. State v. Tarter, 2006 Tenn. Crim. App. LEXIS 238, 18-20 (Tenn. Crim. App. 2006).
3. Using arguments designed to inflame the passions or prejudices of the jury;
Improper to refer to the defendant as a "rabid dog" State v. Bates, 804 S.W. 2d 868, 881 (Tenn. 1991).
Prosecutor should refrain from engaging in any sort of personal name-calling or calling the Defendant derogatory names. State v. Bane, 57 S.W. 3d 411 (Tenn 2001); State v. Cauthern, 967 S.W. 2d 726, 737 (Tenn. 1998).
Improper to call the Defendant a liar. State v. Carruthers & Montgomery, 35 S.W. 516, (Tenn. 2000).
Improper for a prosecutor to comment unfavorably upon a defendant's pro se representation of himself or the presentation of his case. Coker v. State, 911 S.W. 2d 357 (Tenn. Crim App. 1995). Improper to reflect unfavorably upon defense counsel or the trial tactics employed during the course of a trial. See State v. Padgett, 2004 Tenn. Crim. App. Lexis 938, 30-36 (Tenn. Crim. App. 2004).
A prosecutor is strictly prohibited from commenting on the Defendant's decision not to testify. Coker, 911 S.W. 2d at 368. Including the decision not to present any proof.
A prosecutor may not comment upon the Defendant's failure to make a statement to the police because this would punish the defendant for exercising his or her constitutional right to remain silent. Braden v. State, 534 S.W. 2d 657, 659-60 (Tenn. 1976).
It is improper to make biblical and scriptural references during the prosecutor's closing argument. See State v. Middlebrooks, 995 S.W. 2d 550,559 (Tenn. 1999). It is also improper to refer to the ten commandments in the Bible. State v. Carruthers & Montgomery, 35 S.W. 516,(Tenn. 2000).
Improper to refer to the Lord's Prayer and to refer to the Defendant as "the evil one." And to "combat and destroy" the "evil one" State v. Stephenson, 878 S.W. 2d 530, 541 (Tenn. 1994).
A prosecutor cannot simply appeal to the emotions and sympathies of the jury while invoking victim impact argument. State v. Bigbee, 885 S.W. 2d 797 (Tenn. 1994).
It was improper for a prosecutor to comment that the victim's families "trust in you [the jury]." State v. Carruthers & Montgomery, 35 S.W. 516, (Tenn. 2000).
Statements to the jury that they have a responsibility to the victim's family improperly appealed to the emotions and sympathies of the jury. See State v. Bigbee, 885 S.W. 2d 797, 809 (Tenn. 1994).
4. Using arguments which divert the jury from deciding case on the evidence, injecting issues broader than the question of guilt of the defendant under the controlling law, or making projections of consequences of the jury's verdict;
Prosecutor's comment that if you don't stop the Defendant he will take someone else away was an improper attempt to sway the jury. State v. Sims 45 S.W. 3d 1 (2001).
Making the implication that a case was a stronger case than some that the district attorney had tried before, was not proper argument. State v. Walker, 910 S.W. 2d 381 (Tenn. 1995).
Improper to argue that a defendant is a bad person who should be convicted on general principles... for the good of society. State v. Likens, 1986 Tenn. Crim. App. Lexis 2260, 4-11 (Tenn. Crim. App. 1986) quoting knight v. State, 190 Tenn. 326, 332, 229 S.W. 2d 501, 503 (1950).
Statements about a defendant's prior record showing he was experienced and knew his way around the courtroom were improper and went over the Morgan line as to the admissibility of his prior record. State v. Likens, 1986 Tenn. Crim. App. Lexis 2260, 4-11 (Tenn. Crim. App. 1986)
Statements to a sequestered jury that none of them would have been sequestered a week away from their families and with witnesses and papers except because of the defendant, was an improper comment. State v. Bond, 2006 Tenn.Crim. App. Lexis 724 (Tenn. Crim. App. 2006).
Can't make a comment on the consequences of an acquittal. State v. Padgett, 2004 Tenn. Crim. App. Lexis 938, 30-36 (Tenn. Crim. App. 2004).
Arguing that a defendant is trying to find a way out of this case though his lawyers qualified as improper argument. State v. Mathias, 2004 Tenn. Crim. App. LEXIS 68, 20-25 (Tenn. Crim. App. 2004).
It was improper argument to make reference to the fact that one of the defense attorneys was from Cincinnati, Ohio and another member of the defense team was from Nashville (out of town). State v. Pendergrass and Broad Street Video, 13 S.W. 3d 389 (Tenn. Crim. App. 1999).
5. Intentionally referring to or arguing facts not in evidence where the facts are not matters of common public knowledge.
Arguing that the state's witnesses houses were burned as a form of intimidation was improper in the absence of any evidence of the reasons that the house was burned. State v. Williams, 690 S.W. 2d 517, 525 (Tenn. Crim. App. 1985).
Argument that a witnesses' Father's store burned before the trial was improper because there was nothing to connect the defendant to the burning. State v. Frank Loftis, 1990 Tenn. Crim. App. Lexis 475 (Tenn. Crim. App. 1990).
Implying that the state's witnesses would be in danger if the defendants were not convicted was error. State v. Jakie Durhan and Gary Lee Raines, 2003 Tenn. Crim. App. LEXIS 547 (Tenn. Crim App. 2003).
See generally State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citing Standards Relating to the Prosecution Function and the Defense Function §§ 5.8-5.9.
It is important to remember that if opposing counsel is guilty of improper argument, defense counsel must make an immediate objection or the issue will be waived. In addition, counsel may not be able to complain if, as a result of his own improper remarks, he or she was provoked or invited the prosecutor to respond in kind. See State v. Jeffery Porter, 1989 Tenn. Crim. App. Lexis 44 (Tenn. Crim. App. 1989). The failure to object contemporaneously may also constitute a waiver of the improper argument pursuant to Tennessee Rule of Appellate Procedure 36(a).
In summary, if the prosecutor's argument is improper, don't be afraid to rise and object immediately. Don't waive any of your client's rights or objections. The trial court might give a curative instruction and say that cured the comment but if there is a conviction, the Court of Criminal Appeals will note your didn't waive the issue and it might make the difference in a close case. Don't go down easy. Perhaps it will make a difference for the jury or the Appellate Court. In addition, your client will know that you are fighting even to the end of the trial for them.