Strike hard blows but not foul ones during close.
Andrea Westerfeld
“A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. A prosecuting attorney, though free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly.”1
Closing argument is nearly every prosecutor’s favorite part of trial. It’s a chance to get away from witness headaches and legal arguments and just talk about the whole of your case to the jury. But don’t get carried away! Even veteran prosecutors can wind up losing a case from a mistake in closing argument, whether through a mistrial or reversal on appeal. Of course, many other types of permissible argument do not slot neatly into one of these four areas, such as explaining the relevant law or the jury charge.3 It’s more important to remember what is not permitted and why. This article will provide a list of the more common problem arguments and how to not get caught in the trap.
The common saying is that there are four permissible areas of jury argument:
1) summary of the evidence,
2) reasonable deductions from the evidence,
3) response to opposing counsel’s argument, and
4) plea for law enforcement.2
Problem arguments
Arguing outside the record.
This is probably the most common mistake in closing argument. During argument, you may summarize the evidence presented, make reasonable deductions from it, and talk about things that are common knowledge. But anything that cannot be traced back to evidence in front of the jury is not a proper subject for argument. Here are a few examples.
“There’s something very important that I cannot tell you about concerning why you should not give [the defendant] anything less than 10 years.”4 This is improper because it injects outside facts and invites the jury to speculate about the “very important” reason to which the prosecutor alludes.
“I can’t show you his arms; he’s [the first co-defendant] got long sleeves on, and I don’t know if you can see hers [the second co-defendant] or not—but look at the needle tracks on them.”5 This is improper because there was no evidence of needle marks, and any marks would not have been visible to the jury; thus, the jury was left to speculate whether the marks existed and what they meant.
“What’d he do? He does this. He does this. ‘I refuse. I refuse. I refuse to take the breath test. I refuse.’ You know why he refuses? Because if he blows in the machine, the game is over.”6 This statement is proper because it is a reasonable inference that the defendant would refuse a breath test because he was intoxicated. But the argument would be improper if the prosecutor tried to argue the defendant would have blown a particular result because there was no evidence of a precise alcohol concentration in the record.
Expressing personal opinions.
A corollary of the first rule is that prosecutors must be careful not to inject their own opinions into argument, at least where it would amount to unsworn testimony. It is fine to express opinions that are reasonable deductions from the evidence, but where your opinion is based on information not in front of the jury, whether personally vouching for a witness’s credibility or discussing police or office procedures, it is improper. Here are a few examples.
“I don’t believe I have ever seen anybody that I thought was any more honest than she is.”7 This is improper because it gives the prosecutor’s personal opinion of the witness’s credibility, which is not based on any evidence from trial.
“[N]ow who is the expert? You look. You look. You tell me, did not that boot make that print? If so [sic—not?], why not? Looks like it to me.”8 This argument is proper because it was based solely on the evidence and did not imply the prosecutor had any special expertise.
Commenting on the defendant’s failure to testify.
We all know from our first day on the job that a prosecutor absolutely cannot comment on the defendant’s failure to testify. But it’s not only outright saying, “By the way, the defendant didn’t testify!” that can be a problem. For example, it’s fair to comment on the defense failing to produce evidence to support a theory, but if the evidence is something only the defendant could produce, then it’s a comment on his failure to testify. Before commenting on any evidence that the defendant did not produce, make sure it’s something that could have been introduced by some other evidence. This can include prior statements by the defendant that have been introduced into evidence. Here are some examples.
“You’ve heard that now from two people. You heard no evidence to the contrary as to … the second victim. You heard no denial. That was just accepted.”9 This is improper because the only person who could have denied the victims’ testimony was the defendant.
“Questions are not evidence; they are not facts. All this about a foster home and being abused and all, all that was questions. Not one fact has been presented to you about foster homes and a bad childhood and being abused. If it was there, they can bring it to you. They told you I can bring anything—”10 This is proper because it referred to witnesses who testified about the defendant’s experience in foster homes. The evidence could have been introduced through the foster parents, social workers, or other sources than the defendant’s testimony.
“They want to say first that it’s self-defense. Well, in order to have self-defense, what has to happen is someone says, ‘Yeah, I committed this crime. I committed this murder. I did this and I intended to do this because I was in fear of my life.’”11 This is proper only because the defendant’s written statement was admitted, and the argument in context referred to it. Always be careful when using the word “I” when explaining a defense because it is often automatically considered a reference to the defendant testifying.
Commenting on the defendant’s lack of remorse.
This is really just a continuation of commenting on the defendant’s failure to testify, but it’s worth a separate mention because it’s very easy to trip on. If the defendant does not testify, then prosecutors must be very careful mentioning that he did not express remorse. It is appropriate to do so only if the defendant has given pretrial statements that were admitted into evidence or if other witnesses testified about his lack of remorse. Otherwise, the only way the defendant could express remorse is by taking the stand, and prosecutors can’t mention that in closing argument. A few examples include:
“You have had a chance to sit here this whole trial, listen to the evidence, look at the demeanor of the witnesses on the stand. And you have had chance [sic] to look at everything. See any remorse in this courtroom other than comes from the …”12 This argument is improper because the defendant did not testify and no witnesses testified to the defendant’s lack of remorse.
“That’s the type of person you’re dealing with in [the defendant]. And since that time not one feeling of remorse, not one word of sorry.”13 This is proper because a police officer testified that the defendant had told him, “I’m not sorry.”
Nontestimonial courtroom behavior.
The demeanor of a testifying witness, so long as it was something visible to the jury during his testimony, is relevant to the jury’s determination of credibility. Therefore, a prosecutor can comment on the defendant’s expressions or behavior while he was on the witness stand, but the defendant’s behavior while seated at counsel table is not evidence, and commenting on it runs the risk of both arguing outside the record and commenting on the defendant’s failure to testify. For instance:
“You observed [the defendant’s] demeanor in this courtroom and I submit to you it is a reasonable deduction that he would have reacted in some way, shown some concern. He has just sat there cold, unnerved, uncaring, just like he was like that morning [of the burglary]. That tells you a great deal about him. That has nothing to do with articulation or being able to speak or education. No, that has to do with the fact that he is guilty and he could care less this week that he is guilty and he could care less back on June 9th, 1983.”14 This is improper because the defendant’s behavior was not evidence and it was not a reasonable deduction that he was guilty merely because he did not react to the victim’s testimony.
“Now, we all heard very credible testimony from an independent witness who sat right here on the stand and told you that that man, the defendant (indicating), sitting right here now looking like he really doesn’t care one way or another what happens here today—”15 Again, this is improper because whether the defendant looked concerned about the outcome of the trial was not evidence of guilt.
Shifting the burden of proof.
The State cannot make any argument that misstates the law. The most common way of doing so is a statement that improperly shifts the burden of proof onto the defendant. The State cannot imply, directly or indirectly, that the defendant has the burden of proof in any matter, except for affirmative defenses where the defendant does have the burden. As discussed above, a prosecutor can comment on the defendant’s failure to bring witnesses or evidence to support his story, but we must be careful not to imply that such failure means the State doesn’t have to prove its case.
“There is no gray area here. He did it, or he didn’t do it. That’s the only choice here. There is no gray area here. There is no notion that I believe he did it, but you didn’t prove it.”16 This argument is improper because a jury can believe that the defendant is guilty but the State did not present proof beyond a reasonable doubt.
“You may hear from the defense, he was good when he was in the penitentiary. Well, let me tell you something. You don’t find anything but one year’s worth of information that he didn’t do anything wrong, that year from ’83 to ’84, when he was in the penitentiary. I defy you to find a shred of documents anywhere in evidence that says he is a model prisoner. You won’t find it.”17 This is proper because it commented only on the defendant’s failure to produce witnesses or documentary evidence.
Strike at the defendant over counsel’s shoulders.
No matter how tempting it may be at the end of a long, hard-fought trial, be careful not to personally attack the defense attorney. The old faithful “Of course Mr. Smith says the defendant’s innocent—he’s paid to think that” can end up getting the State reversed. Prosecutors are allowed to respond to the defense arguments, but we must take care to respond to the argument, not the arguer. When the argument is made in terms of the defense counsel personally and explicitly impugns his character, it is improper. For example:
“The defense has attempted to get you off the main road, to divert you. They don’t want you to stay on the main road because they know where that will take you. … They want you to take a side road, a series of side roads, rabbit trails, and a rabbit trail that will lead you to a dead-end. The truth is not there.”18 This was improper because it referred to defense counsel personally and suggested counsel wanted to divert the jury from the truth.
“Ladies and gentlemen, if I had done just a smidgen of what [defense counsel] said, I should not only be fired, but I should be indicted. So what she did to you was she lied. … She stood up here and lied to you.”19 This was improper because it dealt with matters outside the record and the prosecutor’s opinion of defense counsel’s honesty.
“There is a saying among lawyers that if you don’t have the law on your side, you try the facts. If you don’t have the facts, you try to argue the law. And when you have neither on your side, you argue something ridiculous.”20 This was proper because the prosecutor only attacked counsel’s argument as ridiculous and did not impugn counsel personally.
Putting the jury in the victim’s shoes.
There is a fine line between asking the jury to feel sympathy for the victim and asking the jury to feel like the victim. Just as the victim is not permitted to testify about what punishment she would like to see, the prosecutor may not ask the jury to imagine what the victim would like or what punishment they would want if they were the victim. Here are a few examples.
“I think you can see from the evidence, from some of the photographs, there is a look of stark terror in the photographs seen on her face. It is fair for you to think about the feelings of the father who lost his baby daughter and it is fair for you to think about how you would feel if you lost your children in considering …”21 This was improper because it was simply “a plea for abandonment of objectivity” rather than any legal basis for punishment.
“Place yourselves in the shoes of the victim … How would you feel? What would you want?”22 Again, this is improper because it invites the jury to assess punishment based on a sense of vengeance rather than the facts and the law.
“In thinking about what to do with this defendant, I want you to think of the last few moments that [the victim] was alive because that is appropriate. Rosa told you that she just remembers hearing him scream. You know he was in pain. I think it is very easy in the course of a trial to hear evidence in a very antiseptic, sort of unemotional way, and for a moment before you decide what to do with this defendant, I want you to close your eyes and think of how that young man felt.”23 This was proper because the jury is entitled to consider the “full, unvarnished specter of the defendant’s actions,” and the victim’s physical and mental injuries are relevant to the appropriate punishment. The prosecutor did not ask the jury to consider what punishment the victim would want but rather to consider the injury the victim suffered when deciding the appropriate punishment.
Community expectations.
A plea for law enforcement is a proper area for jury argument. It can include arguing the relationship between the jury’s verdict and deterrence of a specific type of crime or crime in general. It can also include the impact of the verdict on the community. But you may not argue that the community expects or demands any particular verdict or sentence. Such an argument is excluded both because it injects a new fact that is not part of the evidence and because it invites a verdict based on emotional grounds rather than one tailored to the particular defendant. Some examples:
“You have a chance right now to cut this cancer cell out of this society, and hopefully save it. It is up to you 12 people. Now, the only punishment that you can assess that would be any satisfaction at all to the people of this county would be life [imprisonment].”24 This was improper because it suggests the community expects a particular result.
“Now, that’s sad, it really is, and you should think about [the victim] when you’re assessing your punishment. Let’s think about her and think about the other children that live in this community that are subjected to this type of conduct by others and use your common sense.” This was proper because it asked the jury to consider deterrence of a specific type of crime, sexual assaults against children.
Conclusion
Unfortunately, there are many ways to lose your head and lose your case during closing argument. It can be difficult in the heat of the moment to distinguish between the “hard blows” that are not simply allowed but encouraged, and the “foul blows” that must be avoided at all costs. This article is not a complete list of reversible closing arguments, but I hope it has provided a refresher on some of the more common, easy-to-make mistakes. When in doubt about whether an argument is improper, the ultimate consideration is the effect it will have on the jury. If the effect is to ask the jury to base its verdict on something not properly before it—whether facts not introduced into evidence, something the law forbids them to consider, or simply pure vengeance—then reconsider. The jury must reach the correct result under the law and the evidence, and our job in closing argument is to help them get there.
Endnotes
1 Jordan v. State, 646 S.W.2d 946, 948 (Tex. Crim. App. 1983).
2 Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
3 Hawkins v. State, 135 S.W.3d 72, 86 (Tex. Crim. App. 2004) (Womack, J., concurring).
4 Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
5 Jordan v. State, 646 S.W.2d 946, 947 (Tex. Crim. App. 1983).
6 Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
7 Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981).
8 McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985).
9 Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim. App. 2007).
10 Patrick v. State, 906 S.W.2d 481, 491-92 (Tex. Crim. App. 1995).
11 Cruz v. State, 225 S.W.3d 546, 549 (Tex. Crim. App. 2007).
12 Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991).
13 Howard v. State, 153 S.W.3d 382, 385-86 (Tex. Crim. App. 2004).
14 Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986).
15 Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004).
16 Abbott v. State, 196 S.W.3d 334, 343-44 (Tex. App.—Waco 2006, pet. ref’d).
17 Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005).
18 Mosley v. State, 983 S.w.2d 249, 248-59 (Tex. Crim. App. 1998).
19 Brown v. State, 270 S.W.3d 564, 571-72 (Tex. Crim. App. 2008).
20 Coble v. State, 871 S.W.2d 192, 203-204 (Tex. Crim. App. 1993).
21 Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985).
22 Williams v. State, 732 S.W.2d 762, 765 (Tex. App.—Beaumont 1987, no pet.).
23 Torres v. State, 92 S.W.3d 911, 921 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
24 Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984).