OBJECTIONS
to
JURY ARGUMENT

copyright © 2001 Ray Moses
all rights reserved
no copying, reprinting or republishing without permission


Defense Lawyer: Your Honor, we have filed a motion in limine to prevent the prosecutor from making his standard Biblical argument in this child abuse case.
Court: What do you think he's gonna say, counsel?
Defense Counsel: Unless you stop him, he's gonna quote from the Bible, Your Honor. We anticipate he's going to try to say, "If anyone offend these little ones, it would be better for him if a millstone were put around his neck and he were cast into the sea." Then, he's gonna ask the jurors to hang a millstone around my client's neck and drop him into the metaphorical drink, i.e., the clink.
See State v. Sidden, 491 S.E.2d 225 (N.C. 1997);
See also Luke 17:2; Matthew 18:6.


CCJA CHECKLIST
of
GENERIC OBJECTIONS TO IMPROPER ARGUMENT

[For a much more extensive list of general objections that can be made during a criminal trial  see CCJA's Condensed Objections and O&C's Cases] Here is a list of objections that you can place in your trial notebook for use during the argument stage of the criminal trial. Check the case law in your state and pencil in the applicable cases. Remember that your objection must be timely, your ground must be specific, you must identify the portion of the argument that is objectionable. In multiple defendant cases, your objection must be party specific ,i.e., object on behalf of your client if there are multiple defendants (parties) and the argument is admissible as to other defendants but not yours.

Introduction

As a trial lawyer, you need to know what you and your opponent can legitimately say in jury argument. This means that you have to constantly come up to speed on what the cases and statutes in your jurisdiction say about what is permissible and what is not. [Note: Students in my O&C course will find a whole web page devoted to slough of cases about permissible/impermissible jury argument from every jurisdiction; prosecutors and defenders will also find some appellate case law re jury argument on this page (1).] You must also read and be familiar with your jurisdiction's Rule of Professional Conduct (RPC) and Advisory Ethics Opinions (AEO). [Note: The CCJA ETHICS page has hyperlinks to every state's Rules of Professional Conduct and every state's Advisory Ethics Opinions, see also (1). Re my homestate, Texas, here are the Texas RPC,the Texas AEO, the Texas Lawyer's Creed, and the ABA Standards - Prosecution - Opening Statement 3-5.5 and Jury Argument 3-5.8 and Defense - Opening Statement 4-7.4 and Jury Argument 4-7.7]

In some jurisdictions, including my home state, Texas, if the criminal defense attorney fails to object to improper argument, the defense will waive any potential error. Also, if the defense lawyer objects at trial but the trial court objection does not comport with the complaint on appeal, nothing is presented for review.  [Note re Jury Argument in Texas: The Texas rule in criminal cases is, "To preserve any error from improper jury argument, a party must object to the argument and pursue the objection until the trial court rules adversely." See Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim App 1996). See also Threadgill v. State, 146 S.W,2d 654 (Tex. Crim. App 2004); Howard v. State, 153 S.W.3d 382 (Tex. Crim. App. 2004) cert denied 126 S. Ct. 1429. Also, if the trial court objection does not comport with the claim on appeal, nothing is preserved for appeal. See Wead v. State, 129 S.W.3d 126 (Tex. Crim App. 2004). For comparison purposes,  In Texas civil cases the rule is, "To obtain reversal of a judgment based on improper jury argument, an appellant must prove: (1) error; (2) that was not invited or provoked; (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or motion for mistrial; and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge." Standard Fire Ins. Co. Reese, 584 S.W.2d 835, 839 (Tex. 1979). As one might expect, when a valid objection to improper prosecution argument is missed and thus waived by the defense, appellate cases in Texas typically raise the issue of incompetence and ineffectiveness of trial counsel; such claims are seldom successful. Other Texas statutory references to argument: Articles 36.02 (Additional Testimony Allowed Before Conclusion of Arguments), 36.07 (Number of Arguments), 36.08 (Order of Arguments) CCP; Rules 33.1, (Preservation of Error), 44.1 (Reversible Error in Civil Cases),  and 44.2 (Reversible Error in Criminal Cases - Constitutional and Other Errors viv a vis Harmless Error Tests), Texas Rules of Appellate Procedure.] 

To check your own state for statutes and case law regarding permissible and impermissible jury argument, consult the CCJA Cases and Statutes page which lists cases from various states and federal circuits. You will find that in determining whether prosecutorial impropriety in argument was severe, appellate court consider it highly significant that defense counsel failed to object to the improper remark, to request curative instructions or to move for a mistrial. See below. Also, become familiar with the contents of your state's Rules of Professional Conduct. If the prosecutor's remarks in argument violate any of these ethical standards, include that in your objection. See CCJA Ethics.

Of course, the decision to object to argument will be tempered by numerous considerations, including the seriousness of the error and whether it is best addressed by objection or by reply. In most jurisdictions, the prosecution is allowed to make an opening argument. The defense then follows with its argument. The prosecution is then allowed to make a closing argument that is limited to rebuttal. If the prosecutor errs in the rebuttal argument, the defense typically has no remedy other than an objection.

Object Until You Have an Adverse Ruling

If you do object to your opponent's improper argument, remember that you preserve error for appeal only from an adverse ruling by the trial judge. If the trial judge sustains your objection, you will need to press for an adverse ruling. That generally means asking the trial judge that the jury be instructed to disregard the improper argument, and if the judge so instructs the jury, a motion for mistrial. Be thoughtful in asking for a mistrial. On occasion, you may get what you asked for. Always keep in mind that it is error for a prosecutor in bad faith to intentionally (and in my state - recklessly) goad the defense into moving for a mistrial; jeopardy attaches in such a situation to prevent retrial. See Oregon v. Kennedy, 456 U.S. 667 (1982). If you have to ask for a mistrial because of improper prosecution argument, think about adding the "intentionally goading" objection to your request for mistrial.

Responding to Objections to Your Argument

Normally, you should not respond to opposing counsel's objection. If you orally respond to the interruption, you will temporarily lose focus on the story of your case. It's like shifting from overdrive into first gear. You are no longer into the the evidence and logical inferences. Instead, your mind has turned to the legality of what you were saying and how you can justify it to the court. Think also of how the jury will be distracted by a colloquy between you, the court, and opposing counsel. The juror rapport you have built during argument will have to be rebuilt when you begin arguing again. You want to keep the distraction to a minimum.

So my advice is to stay above the affray. Let the opponent object. Let the judge rule. If the judge overrules the objection, pick up precisely where you stopped. When the objection goes to the issue of whether you are arguing facts not supported by the record, the judge will often decline to issue a definitive ruling and say, "The jury has heard the evidence, and the jury's recollection will control." You might say, "May I continue, Your Honor?" before commencing. If the judge sustains the objection to your argument, abide by the ruling, and simply move on.

What should you do while the opponent is objecting? While your opponent is objecting, keep your eyes on the jury. Remain poised and ready to continue. Because the objection will distract your train of thought, you'll have to make a conscious effort to remember what you were talking about when the objection was lodged. Focus on that. Resist the temptation to turn and rise to the bait.

The Door May Not Be Open

The U.S. Supreme Court has indicated that the prosecution should not respond to an improper defense argument with an improper argument of its own. See United States v. Young, 470 U.S. 1 (1985). Instead, the prosecutor should object and ask the trial court for an admonition and curative instructions.

The Argument May Be Improper But Not Reversible Error

Note that prosecution arguments that merit condemnation from appellate courts won't constitute a ground for setting aside a conviction on collateral attack, unless the arguments so infect the trial with unfairness as to make the resulting conviction a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Some factors that your jurisdiction may consider in determining whether a remark to the jury warrants mistrial or reversal of a conviction include (1) the severity of the misconduct, i.e., the magnitude of prejudicial effect of the prosecutor's remarks; (2) measures adopted to cure the prosecutor's misconduct, i.e., efficacy of any cautionary instructions by the trial judge; and (3) certainty of conviction absent the misconduct, i.e., strength of evidence supporting conviction. When you object to the prosecutor's argument, you may on occasion want to add the additional assertion, "The prosecutor's argument makes a rational assessment by the jury unlikely."

Some Things You Can Typically Do In Argument

Your jurisdiction's case law will spell out some of the things that you are allowed to do in argument, e.g., drawing on the  chalkboard or a flipchart, using a computer to present visuals (perhaps in PowerPoint) in aid of the logic of an argument,  accurately reenacting a crucial event that is described in the evidence, stating matters of common knowledge, commenting on the other side's failure to call witnesses (other than the defendant) that the evidence had shown are peculiarly within the power of the opposition to call,  explaining a logical deduction or conclusion from the evidence, etc.

More Resources

[Again, for a more exhaustive list of objections that can be made generally throughout the criminal trial, press here. Here's a civil lawyer's 25 page pdf article on the Top 10 Incurable Jury Arguments Here's a 1 page list of some basic objections to argument.]




Hip Pocket List of Common Objections to Argument

  • (Misstating the evidence) -THE ARGUMENT MISSTATES THE EVIDENCE. *

  • (Confusing the issues) - THAT ARGUMENT CONFUSES THE ISSUES IN THIS CASE.

  • (Treating limited evidence as though it were admissible for all purposes) - THE ARGUMENT IMPROPERLY TREATS EVIDENCE THAT WAS ADMITTED FOR ONLY A LIMITED PURPOSE AS THOUGH IT WERE ADMITTED AS PROBATIVE EVIDENCE GENERALLY AND WITHOUT LIMITATION.

  • (Misleading demonstration) -THIS DEMONSTRATION IS UNFAIRLY MISLEADING IN THAT IT IS NOT SUPPORTED BY THE EVIDENCE OR ANY LOGICAL INFERENCE THAT COULD REASONABLY BE DRAWN FROM THE EVIDENCE. IT IS AN IMPROPER AND UNPROFESSIONAL USE OF THE ACTUAL EVIDENCE CALCULATED TO UNFAIRLY INFLUENCE THE JURORS. 

  • (Misquoting witness) - THE ARGUMENT MISQUOTES THE WITNESS.*

  • (Improper statement of the law) - THE ARGUMENT IS AN IMPROPER STATEMENT (MISSTATEMENT) OF THE APPLICABLE LAW.

  • (Improperly and incorrectly paraphrasing law) -  THE ARGUMENT IMPROPERLY AND INCORRECTLY PARAPHRASES THE APPLICABLE LAW

  • (Not reasonable inference from facts - sheer speculation) - THE ARGUMENT IS NOT A REASONABLE INFERENCE FROM THE EVIDENCE. COUNSEL IS MISLEADING THE JURY BY SUGGESTING THAT IT MAY LEGITIMATELY DRAW SUCH AN INFERENCE FROM THE EVIDENCE IN THIS CASE. COUNSEL IS INVITING THE JURORS TO ENGAGE IN SHEER SPECULATION UNCONNECTED IN A LOGICAL MANNER TO ANY EVIDENCE IN THIS CASE.  THE RIGHT TO ARGUE DOES NOT INCLUDE THE LICENSE TO SUGGEST AN INFERENCE FROM FACTS NOT IN EVIDENCE.

  • (Assuming existence of unproven facts / arguing facts not in evidence) - THE ARGUMENT ASSUMES THE EXISTENCE OF EVIDENCE THAT WAS NEVER INTRODUCED. COUNSEL IS TRYING TO MAKE HERSELF/HIMSELF AN UNSWORN WITNESS TO MATTERS THAT ARE NOT IN EVIDENCE. * [Note: If the judge sustains your objection to "arguing facts not in evidence," you may want to add this request: "Your Honor, would the court instruct counsel to confine her/himself to arguing the evidence in the record and not stray into rank speculation about matters that have not been the subject of proof?"]

  • (Using items for purposes of demonstration in argument when such items have not been placed in evidence) - THE DEMONSTRATION IS NOT PROPER. THE OBJECTSTHAT COUNSEL IS ATTEMPTING TO USE FOR THIS DEMONSTRATION WERE NOT  PLACED IN EVIDENCE, EITHER AS DEMONSTRATIVE OR REAL EVIDENCE.

  • (Failure to call witnesses that were equally available to each side) - THE REFERENCE TO FAILURE TO CALL WITNESSES WAS IMPROPER IN LIGHT OF THE FACT THAT OPPOSING COUNSEL HAD THE POWER AND ABILITY TO SUBPOENA THE WITNESS. [Note: This objection may not be appropriate if the witness referred to by opposing counsel is peculiarly  within your power to produce.]

  • (Prosecutor's comment on defense's failure to produce evidence) - THAT COMMENT ABOUT MISSING EVIDENCE WAS AN IMPROPER EFFORT BY THE PROSECUTOR TO SHIFT THE BURDEN OF PROOF TO THE SHOULDERS OF THE DEFENSE.

  • (Unsworn assertion of fact - counsel testifying) - THE ARGUMENT IS AN UNSWORN ASSERTION OF FACTS. COUNSEL IS TRYING TO ARGUE AN INFERENCE FROM NON-EXISTENT EVIDENCE.

  • (Vouching for credibility of witness - counsel indicating to jury that s/he has special knowledge re witness credibility) - THE ARGUMENT CONSTITUTES UNSWORN CHARACTER EVIDENCE IN THE FORM OF COUNSEL'S PERSONAL OPINION IMPROPERLY VOUCHING FOR THE CREDIBILITY OF A WITNESS AND UNFAIRLY PUTTING THE PRESTIGE OF THE GOVERNMENT BEHIND THE WITNESS THROUGH HER  PERSONAL ASSURANCES AS A GOVERNMENT ATTORNEY OF THE WITNESS' TRUTHFULNESS. COUNSEL IS TRYING TO MAKE HERSELF AN UNSWORN CHARACTER WITNESS IN THE CASE. [Note: Sometimes an advocate will leave herself open to this objection by expressing a personal opinion regarding the truth or falsity of the evidence or the testimony. One common situation in which this objection may be used is when a prosecutor argues that he (and/or his witness(es)) would not jeopardize their government career(s) by making false statements in court. This has the additional unfairly prejudicial effect of implying that the prosecutor has concluded that his witness(es) is credible based on a facts not in evidence, i.e., that law enforcement agents who appear in court as witnesses always tell the truth. Any time a prosecutor is saying the equivalent of "Trust me, I have had personal experience with my witnesses and I trust their honesty and truthfulness," that prosecutor is making himself an unsworn character witness.]

  • (Opposing counsel's expression of personal opinion and/or personal belief of the culpability of the accused) -THE ARGUMENT IMPROPERLY ASKS THE JURORS TO RELY ON AN UNSWORN EXPRESSION OF OPPOSING COUNSEL'S PERSONAL BELIEF AND PERSONAL OPINION REGARDING CULPABILTY. YOUR HONOR WELL KNOWS THAT ARGUMENT IS NOT HE SAME AS OPINION, AND COUNSEL WAS STATING A FLAT STEMENT OF PERSONAL BELIEF. THAT WAS TANTAMOUNT TO COUNSEL SAYING, "TRUST ME. I WOULD NOT PROSECUTE A PERSON UNLESS I AM PESONALLY CONVINCED OF THEIR GUILT. PLEASE CONSIDER MY PERSONAL BELIEF AS EVIDENCE IN ARRIVING AT YOUR DECISION. " [Note: This objection is also valid against a criminal defense lawyer who in argument expresses a personal belief in his or her client's innocence.] [Note: On occasion a prosecutor in a death penalty case will comment about the policy of the prosecutor's office in seeking death in only a few cases; the comment invoking office policy suggests to the jury that the prosecutor's office has expertise in determining which defendant's deserve the death penalty and thus undermines the jurors' belief that they have unfettered discretion in deciding the issue.] [Note: Avoid this objection by providing the jury with the evidence or lack of it that supports your point. The architecture of a winning argument includes evidentiary support for its conclusions.]

  • (Opposing counsel claim to personally know of facts not in evidence that the jurors don't know about that conduce to establish the accused's guilt) THAT ARGUMENT IMPROPERLY CONVEYS TO THE JURY THE INNUENDO THAT THERE ARE FACTS NOT PRESENTED TO THIS JURY AS EVDENCE, BUT KNOWN TO COUNSEL, THAT WOULD SUPPORT A CONVICTION; THIS IS NOT ONLY IMPROPER ARGUMENT SEEKING TO DIVERT THE JURY FROM ITS DUTY TO DECIDE THE CASE ON THE EVIDENCE, IT IS ALSO AN ETHICAL VIOLATION OF RULE 3.7 OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT; IN EFFECT, COUNSEL IS BY IMPLICATION SAYING, "I HAVE SPECIAL PERSONAL KNOWLEDGE AND EXPERIENCE ABOUT THIS CASE THAT YOU JURORS DON'T. IF YOU KNEW WHAT I KNOW, YOU'D FIND HIM GUILTY. TAKE MY WORD ON THIS, AND FIND HIM GUILTY." [Note: This type of argument says believe me rather than your lying mind. Thus, it undermines the jury's perception that it has unfettered discretion in coming to the correct decision under the law and makes a rational jury assessment less likely.]

  • (Prosecutor's comment on defendant's failure to testify) - THE PROSECUTOR'S ARGUMENT IS AN IMPROPER REFERENCE TO THE ACCUSED'S INVOCATION OF HIS FIFTH AMENDMENT PRIVILEGE. IT AMOUNTS TO A  PROSECUTORIAL COMMENT DISPARAGING THE DEFENDANT FOR  EXERCISING HIS CONSTITUTIONAL RIGHT NOT TO TESTIFY IN THIS CASE. SUCH A COMMENT HAS AN IMPROPERLY CHILLING AFFECT ON THE EXERCISE OF THE PRIVILEGE. [See Griffin v. California, 380 U.S. 609 (1965); O'Connor v. Ohio, 385 U.S. 92 (1966; Anderson v. Nelson,390 U.S. 18 (1967); Fontaine v. California, 390 U.S. 593 (1968);Mitchell v. United States, 526 U.S. 314 (1999); Carter v. Kentucky, 450 U.S. 288 (1981); Brooks v. Tennessee, 406 U.S. 605 (1972); But see Lakeside v. Oregon435 U.S. 333 (1978); Lockett v. Ohio, 438 U.S. 586 (1978); Portuondo v. Agard, 529 U.S. 61 (2000); United States v. Hasting, 461 U. S. 499 (1983); United States v. Robinson, 485 U. S. 25 (1988).] [Note: Check your state's statutes for a specific provision regarding comment on the defendant's failure to testify; for example, Art. 38.08 CCP in my home state, Texas, states, " Any defendant in a criminal case shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall it be alluded to or commented on by counsel in the case." (emphasis added); if your state has a similar statute or rule, be certain to launch this statute or rule as a separate ground for your objection to the improper comment by the prosecutor.]

  • (Prosecutor's comment on defendant's post-arrest silence after receiving Miranda warnings) - THE PROSECUTOR'S ARGUMENT THAT THE DEFENDANT'S POST-ARREST SILENCE AFTER RECEIVING MIRANDA WARNINGS IS PROBATIVE OF GUILT VIOLATES THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. THE JUROR'S ARE BEING ASKED TO DRAW AN UNFAVORABLE INFERENCE FROM THE DEFENDANT'S ASSERTION OF HIS CONSTITUTIONAL RIGHTS. [See Greer v. Miller, 483 U.S. 756 (1987). See also Doyle v. Ohio, 426 U.S. 610 (1976). But see Fletcher v. Weir, 455 U. S. 603, 607 (1982) holding that "absen[t] the sort of affirmative assurances embodied in the Miranda warnings," the Constitution does not prohibit the use of a defendant's postarrest silence to impeach him at trial. See also Jenkins v. Anderson, 447 U. S. 231, 240 (1980).]

  • (Prosecutor's comment on defendant's refusal to consent to a search) - THE PROSECUTOR'S ARGUMENT CONSTITUTES A DISPARAGING REFERENCE TO THE DEFENDANT'S INVOCATION OF HIS CONSTITUTIONAL RIGHTS UNDER THE FOURTH AMENDMENT. SUCH A COMMENT HAS A IMPROPERLY CHILLING AFFECT ON THE EXERCISE OF THE RIGHT TO BE FREE FROM WARRANTLESS AND UNREAONABLE SEARCH AND SEIZURE.

  • (Prosecutor's comment on defendant's request for consultation with a lawyer before submitting to interrogation) - THE PROSECUTOR'S ARGUMENT CONSTITUTES A DISPARAGING REFERENCE TO THE DEFENDANT'S REQUEST TO CONSULT WITH A LAWYER BEFORE SUBMITTING TO POLICE INTERROGATION. THIS COMMENT SEEKS TO PUNISH THE DEFENDANT FOR THE INVOCATION OF HIS CONSTITUTIONAL RIGHT TO SPEAK WITH A LAWYER BEFORE BEING INTERROGATED BY THE POLICE.

  • (Prosecutor's comment on defendant's courtroom demeanor when not testifying) - THE PROSECUTOR'S ARGUMENT IS AN IMPROPER AND DEROGATORY COMMENT ON THE DEFENDANT'S ALLEGED COURTROOM DEMEANOR AND REACTIONS UNDER CIRCUMSTANCES WHERE THE DEFENDANT IS REQUIRED TO BE PRESENT IN THE COURTROOM AND CONSTITUTES USE OF COMMUNICATIVE, TESTIMONIAL CONDUCT IN VIOLATION OF THE DEFENDANT'S PRIVILEGE AGAINST BEING COMPELLED TO BE A WITNESS AGAINST HIMSELF. THE PROSECUTOR'S UNSUPPORTED ARGUMENT REFERRING TO THE DEFENDANT'S SUPPOSED CONDUCT WHILE SEATED AT COUNSEL TABLE IMPROPERLY SEEKS TO DIVERT THE JURY FROM ITS DUTY TO DECIDE THIS CASE ON THE EVIDENCE. THERE IS NOTHING IN THE RECORD TO SUPPORT THE PROSECUTOR'S REFERENCE TO DEMEANOR.
  
  • (Asking jurors to put themselves in shoes of victim or defendant - "Golden Rule" argument) - THE ARGUMENT UNFAIRLY ASKS THE JURORS IN THIS CASE  TO PUT THEMSELVES IN THE SHOES OF THE VICTIM (OR THE ACCUSED) SOLELY TO CREATE A BIASED OR PREJUDICED PERSPECTIVE. THE ARGUMENT IMPROPERLY ENCOURAGES THE JURORS TO DECIDE THE CASE BASED ON THEIR OWN PERSONAL INTEREST, RATHER THAN AS NEUTRAL ARBITERS OF THE EVIDENCE. [Note: the "Golden Rule" argument most frequently arises in the context of civil injury cases. It might be described as an argument that asks jurors, first, to presume that it was they who were hurt or sued and, second, asks the jurors what they would want to have happen for themselves by way of a verdict.] 

  • (Suggesting that community expects or demands a particular verdict) - THE ARGUMENT IMPROPERLY SUGGESTS THAT THE COMMUNITY AT LARGE EXPECTS (or DEMANDS) A PARTICULAR VERDICT.

  • (Appeal to juror's concern for personal safety) - THE ARGUMENT ATTEMPTS TO LINK THE VERDICT IN THIS CASE TO THE JURORS' SENSE OF PERSONAL SAFETY AND IMPROPERLY ATTEMPTS TO ENGENDER PERSONAL FEAR OF THE ACCUSED.  

  • (Appeal to sympathy) - THAT ARGUMENT IS AN IMPROPER APPEAL TO SYMPATHY.

  • (Reference to punishment or consequences of conviction during the guilt portion of bifurcated trial) - THAT ARGUMENT WAS AN IMPROPER REFERENCE TO THE CONSEQUENCES OF CONVICTION DURING THIS PHASE OF THE TRIAL THAT IS LIMITED TO THE ISSUE OF GUILT OR INNOCENCE.

  • (Appeal for vengeance) - THE ARGUMENT IMPROPERLY ASKS THE JURY TO  EXACT VENGEANCE ON THE DEFENDANT.

  • (Referring to juror by name) - THE OPPOSING COUNSEL' IMPROPERLY SEEKS TO INGRATIATE HERSELF/HIMSELF WITH A JUROR BY REFERRING TO THE JUROR BY NAME DURING ARGUMENT.

  • (Misleading analogy) - THE ARGUMENT PROVIDES AN MISLEADING ANALOGY THAT DRAWS AN UNFAIR COMPARISON WITH THE FACTS IN EVIDENCE IN THIS CASE.

  • (Imploring jury to send message to community) - THE ARGUMENT IMPROPERLY IMPLORES THE JURY TO SEND A MESSAGE TO THE COMMUNITY-.

  • (Suggesting to the jury that the community-at-large expects or demands a particular outcome) - THE ARGUMENT IMPROPERLY SUGGESTS TO THE JURORS THAT THE COMMUNITY-AT-LARGE EXPECTS OR DEMANDS A PARTICULAR OUTCOME.

  • (Injecting a broader issue that diverts the jury from its duty to decide the case of the evidence) - THE ARGUMENT SEEKS TO INJECT A BROADER ISSUE, NAMELY (STATE THE BROADER ISSUE, E.G., AN EMOTIONAL APPEAL) THAT WILL DIVERT THE JURY FROM ITS DUTY TO DECIDE THE CASE ON THE EVIDENCE.   

  • (Slur against accused) - THE ARGUMENT IS AN INAPPROPRIATE, SCURRILOUS, AND UNFAIRLY PREJUDICIAL COMPARISON, INSULT, AND SLUR AGAINST THE DEFENDANT.

  • (Attack on opposing counsel's credibility, motives, or beliefs) - THE ARGUMENT IS AN UNFAIRLY PREJUDICIAL ATTACK ON THE CHARACTER AND INTEGRITY OF THE ACCUSED'S COUNSEL. THE AD HOMINEM ARGUMENT DISPARAGING ME, HIS LAWYER, IS A VEILED, INDIRECT, AND IMPROPER EFFORT BY THE PROSECUTOR TO UNFAIRLY ATTACK THE ACCUSED OVER THE SHOULDERS OF HIS COURTROOM REPRESENTATIVE AND SPOKEPERSON AND CREATE UNDUE HOSTILITY TOWARD THE ACCUSED IN THE MINDS AND HEARTS OF THE JURORS, e.g., "Would you buy a used car from opposing counsel?" or "I think we can all agree that opposing counsel is perhaps the foulest man any of us has ever encountered." [Note: An ad hominem (L. "to the man") argument is one that appeals to feelings or prejudices rather than intellect through an attack on the opponent's character rather than a response to the opponent's arguments.]

  • (Disparaging defense counsel as making the standard argument made by defendants in cases of this type) - THE ARGUMENT DEPRIVES THE DEFENDANT OF THE PRESUMPTION OF INNOCENCE.

  • (Opposing counsel improperly commenting in argument on objections made by counsel during trial) - OPPOSING COUNSEL IS IMPROPERLY COMMENTING ON THE VALIDITY OF EVIDENTIARY OBJECTIONS I MADE DURING THE TRIAL. THIS IS A DIRECT PERSONAL ATTACK ON ME AND BY IMPLICATION AN UNFAIRLY PREJUDICIAL ATTACK AGAINST THE CHARACTER OF THE  DEFENDANT.

  • (Misuse of religious text) - THE ARGUMENT IS UNFAIR, CONFUSING, AND INFLAMMATORY BECAUSE IT SUGGESTS TO THE JURORS THAT THEY ARE TO APPLY BIBLICAL LAW OR DIVINE LAW IN DECIDING THIS CASE. IT'S A MISUSE OF THE HOLY SCRIPTURE AND UNDERMINES THE JURY'S ROLE. THE ARGUMENT OVERTLY APPEALS TO THE JURORS' RELIGIOUS FAITH AND PRINCIPLES AND SUGGESTS THAT THEY SHOULD FOLLOW RELIGIOUS TEACHINGS IN DECIDING THIS CASE ( OR THAT THE JURORS HAVE A RELIGIOUS DUTY TO CONVICT OR THAT THE JURORS SHOULD APPLY DIVINE LAW AS AN ALTERNATIVE TO THE LAW OF THIS STATE); THIS ARGUMENT VIOLATES THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL; IT IS UNFAIRLY PREJUDICIAL; IT ALSO VIOLATES THE ESTABLISHMENT OF A RELIGION CLAUSE OF THE FEDERAL CONSTITUTION. [Note: Be cautious about making this objection in the jury's presence. Those who profess to be religious are often zealous and may take offense to anyone who appears to disparage believers. If you are able to approach the bench in connection with your objection, point out to the judge that when the court permits a religious argument, it has the effect of the government endorsing or supporting religion; in effect, when the court allows religious appeals in argument over objection, it is giving tacit approval to the argument. Defenders should be aware that when the defense starts to expressly quote from the religious texts, the prosecution may be allowed in some jurisdictions to retort with more of the same under the "open door" rule. My advice to defenders who want to invigorate argument with historical wisdom from the Bible, just quote the words without any attribution. The "born again" and "true believers" on the jury will recognize the source of the words. Religious appeals sometimes occur in the punishment phase of death penalty cases. Note that one state's case law says, "Reliance in any manner upon the Bible or any other religious writing in support of the imposition of the death penalty is reversible error per se and may subject violators to disciplinary actions." Commonwealth v. Chambers, 599 A.2d 630 (PA.1991). As a general rule, even when the jurisdiction abjures religious based argument, the erroneous argument, standing alone, does not furnish grounds for mistrial or reversal on appeal. However, if you can couch your objection to an argument as in violation of a constitutional provision, e.g., the anti-establishment of religion clause of the U.S. Constitution, the appellate court is prohibited from declaring the argument harmless error unless it can find that it was harmless beyond a reasonable doubt, i.e., the record of the case must establish beyond a reasonable doubt that the constitutional violation did not affect the outcome. See Chapman v. California, 386 U.S. 18 (1968). ]  

  • (Attempt to lessen prosecution's burden of proof by reference to appeal, parole, or commutation) -  THE ARGUMENT OF THE PROSECUTOR IMPROPERLY SEEKS TO LESSEN THE DUTY AND RESPONSIBILITY OF THE JURORS BY SUGGESTING THE POSSIBILITY OF THE AN APPEAL IN THE CASE OF CONVICTION (OR PAROLE OR COMMUTATION OF SENTENCE).

  • (Attempt by prosecutor to quantify the burden of proof, i.e., reasonable doubt, in the form of percentages or numbers) - THE ARGUMENT OF THE PROSECUTOR IMPROPERLY SEEKS TO QUANTIFY THE CONCEPT OF REASONABLE DOUBT OR PROOF BEYOND A REASONABLE DOUBT) IN TERMS OF PERCENTAGES (OR NUMBERS). [Note: In trying to explain to a jurors how much certainty they need for criminal conviction under a proof beyond a reasonable doubt standard, prosecutors sometimes try in argument to quantify the burden of proof; the prosecutor may try to do this by use of an analogy, e.g., to an athletic contest such as a football or baseball or to a multi-piece jigsaw puzzle with a certain number of pieces missing from the specific total; courts typically eschew such arguments as an improper attempt to quantify reasonable doubt. (1)]  

  • (Appeal to racial, religious, sexual orientation, or economic prejudices) -THE ARGUMENT IS INFLAMMATORY BECAUSE IT UNFAIRLY AND IMPROPERLY APPEALS TO RACIAL (OR RELIGIOUS OR GENDER OR SEXUAL ORIENTATION OR ECONOMIC) PREJUDICES;  THE ARGUMENT IS CALCULATED TO SEEK, CREATE, ENGENDER, AROUSE, AND ENCOURAGE UNDUE HOSTILITY and PREJUDICE TOWARD (NAME THE PARTY) by seeking to unfairly inflame passions, emotions, and resentments of the jurors. This argument has the effect of diverting the jurors attention from their duty to decide the case on the evidence. [What about a case of alleged terrorism where the prosecutor argues that the accused terrorist, a devout Muslim who testified in his own behalf, would lie to the jurors because they are "kafir" (nonbelievers)?]

  • (Nullification) - THE ARGUMENT IMPROPERLY URGES THE JURORS TO DISREGARD (OR IGNORE) THE APPLICABLE LAW THAT GOVERNS THIS CASE;AS SUCH, THE ARGUMENT CONSTITUTES AN IMPROPER PLEA FOR JURY NULLIFICATION. ( or THE ARGUMENT IMPROPERLY SUGGESTS TO THE JURORS THAT THEY ARE NOT BOUND BY THE LAW THAT THE COURT PROVIDES THEM IN THE INSTRUCTIONS.)

*TIP: When opposing counsel misstates the evidence or argues outside the record, i.e., arguing facts that were never proven by evidence or that are not logical inferences from the evidence, you may want to forego an immediate objection and wait to expose opposing counsel's "shameless chicanery" (trickery, shiftiness, underhandedness) in your argument., e.g., labeling the opponent as an "Inventor of Facts." In some cases, you may even be justified in pointing out that opposing counsel deliberately misled the jurors. If you are in a position to respond to the misstatements, it may be more useful for you to forego objection and wait until your reply argument, not only to point out to the jurors that opposing counsel misstated the evidence, but to have the opportunity to question opposing counsel's ethos (lack of integrity) in stretching the truth. Your reply is one of the "I could have objected to the misstatement of facts but I didn't because I wanted you to see just how far opposing counsel believed he had to go in making up facts. Now, we we know what they think they needed to prove, don't we?  The only problem is there was no evidence whatsoever of (state the invented facts) they so desperately want you to believe." Most experienced trial lawyers believe that a trial lawyer is dead meat, maybe closer to road kill, once jurors catch that lawyer lying to them, falsifying evidence or acting in an underhanded manner. Of course, if a prosecutor waits to misstate evidence in rebuttal after the defense has completed its argument, the defender must object to the disingenuous prosecutorial argument because there is simply no other avenue to reply. Also, in some instances even when defenders do have the opportunity to reply the damage from allowing your opponent to argue outside the record without objecting may be so great, e.g.,a prosecutor or defender explaining the psychology of perception and memory, that a contemporaneous objection is essential to staunch the damage. Finally, if the defender chooses not to object in the hope that the prosecutor's overstraying will provide more fruit for reply, the failure to object may well waive any appellate claim of improper prosecutorial argument.

TIP: After stating the proper objection, defenders should consider adding, "This is a flagrantly improper remark that affects the substantial rights of the accused."

TIP: To preserve the due process/fair trial violation aspect of improper prosecution argument add, "The prosecutor's misconduct deprives the defendant of his/her due process right to a fair trial under the Fourteenth Amendment." If you can work a fair trial constitutional issue into your objection, the standard for reversal on appellate review will typically be more favorable to the defense than it is for non-constitutional error.

TIP: If you want to add a bit of flowery language to an objection for obviously flagrant conduct by the prosecutor, you might consider, "Your Honor, the prosecutor has the right to strike hard blows at us, but s/he has no right to strike foul ones. And that comment was way below the belt." This is not an objection, just something that might spice up a pointed objection.

TIP: Make yourself a list of the ethical constrictions imposed on prosecutors by your state's Rules of Professional Conduct. See Ethics. Study those restrictions, and be ready to incorporate into your objection a reference to the prosecutor's specific relevant deviation in argument. 


OBJECTIONS TO OPPOSITION'S VISUALS
DURING ARGUMENT

Effective advocates will often use one or more new (not previously used in opening or testimony) visuals in argument. There may be grounds for objecting to the use of these visuals created for and used for the first time in argument. Here are a few possible common objections to the use of visuals in explanation of argument. [Tip: If you are going to use a visual in your argument, vet (examine) it against these objections and be sure it passes the test.] 

1.  THE VISUAL WILL MISLEAD AND CONFUSE THE JURY.

2.  THE VISUAL CONTAINS MATERIAL THAT IS NOT SUPPORTED BY EVIDENCE AND PRESENTS UNSWORN TESTIMONY.

3.  THE VISUAL CONTAINS ERRONEOUS INFORMATION.

4.  THE VISUAL DOES NOT PROPERLY ILLUSTRATE WHAT OPPOSING COUNSEL CLAIMS. IT DOESN'T SHOW WHAT COUNSEL PURPORTS THAT IT SHOWS. IT'S NOT A REASONABLE ILLUSTRATION. 

5.  THE VISUAL IS IMPERMISSIBLY SUGGESTIVE

6.  THE VISUAL DOES NOT FAITHFULLY REPRESENT WHAT IT PURPORTS TO REPRESENT.


PRESERVING ERROR WHEN OBJECTING TO IMPROPER ARGUMENT

DEFENDERS, AS MENTIONED ABOVE, IF THE COURT SUSTAINS YOUR OBJECTION TO IMPROPER ARGUMENT, REMEMBER TO REQUEST AN INSTRUCTION FROM THE COURT THAT THE JURY DISREGARD THE IMPROPER ARGUMENT. IF THE TRIAL JUDGE GRANTS YOUR REQUEST AND ISSUES A CAUTIONARY INSTRUCTION, YOU WILL NEED TO DECIDE WHETHER YOU WISH TO PRESERVE THE ISSUE FOR APPEAL BY MOVING FOR MISTRIAL. SOMETIMES, AS WHEN YOU THINK, LATE IN THE GAME, THAT THE CASE WILL GO IN YOUR FAVOR, THE DANGER IN ASKING FOR A MISTRIAL DURING ARGUMENT IS THAT THE TRIAL JUDGE MAY GRANT YOUR REQUEST. IF THE PROSECUTOR IN BAD FAITH INTENTIONALLY GOADED YOU INTO MAKING A MOTION FOR MISTRIAL BY ARGUING IMPROPERLY, OBJECT AND ARGUE THAT RETRIAL IS BARRED.  SEE ABOVE.

IF THE PROSECUTION'S IMPROPER ARGUMENT VIOLATES A CONSTITUTIONAL PROVISION, BEFORE IT CAN BE HELD TO BE HARMLESS ERROR, THE COURT MUST BE ABLE TO FIND THAT IT WAS HARMLESS BEYOND A REASONABLE DOUBT, I.E., THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT THAT THE CONSTITUTIONAL VIOLATION DID NOT AFFECT THE OUTCOME. SEE CHAPMAN V. CALIFORNIA, 386 U.S. 18 (1968).

ADDITIONAL RESOURCES

See the resources collected under "Objections" in the CCJA Advocacy Bibliography

ALR Annotations
  • Propriety and prejudicial effect of comments by counsel vouching for credibility of witness -federal cases, 78 A.L.R. Fed 23 (1986). (87 pages)
  • Propriety and prejudicial effect of attorney's "Golden Rule" argument to jury in federal civil case, 66 A.L.R Fed 333 (8 pages)
  • Propriety and prejudicial effect of a prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused, 41 A.L.R.Fed 10
  • Prejudicial effect of statement by prosecutor that verdict, recommendation of punishment, or other findings by jury is subject to review by other authorities, 10 A.L.R.5th 700 (104 pages)
  • Negative characterization or description of defendant by prosecutor during summation of criminal trial as ground for reversal, new trial, or mistrial - modern cases, 88 A.L.R. 4th 8 (201 pages)
  • Propriety and prejudicial effect of counsel's negative characterization or description of witness during summation of criminal trials - modern cases, 88 A.L.R.4th 209
  • Adverse presumption or inference based on party's failure to produce or examine family member other than spouse, 80 A.L.R.4th 337 (53 pages)
  • Adverse presumption or inference based on party's failure to produce or examine friend, 79 A.L.R.4th 779   (46 pages)
  • Prosecutor's appeal in criminal case to racial, national, or religious prejudice as grounds for mistrial, new trial, reversal, or vacation of sentence, 70 A.L.R.4th 664 (108 pages)
  • Prosecutor's appeal in criminal case to self-interest or prejudice of jurors as taxpayers as grounds for reversal, new trial, or mistrial, A.L.R.4th 1063 (35 pages)
  • Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602 (204 pages)
  • Propriety and prejudicial effect of prosecutor's argument commenting on failure of defendant's spouse to testify, 26 A.L.R.4th 9 (48 pages)
  • Propriety and prejudicial effect of informing jury that witness in criminal trial has taken polygraph test, 15 A.L.R.4th 824 (47 pages)
  • Adequacy of defense counsel's representation of criminal client regarding argument, 6 A.L.R.4th 16 (271 pages)
  • Propriety and prejudicial effect of prosecutor's argument to jury indicating that he has additional evidence of defendant's guilt which he did not deem necessary to present, 90 A.L.R.3d 646 (86 pages)
  • Propriety and prejudicial effect of prosecutor's argument giving impression that judge believes defendant guilty, 90 A.L.R.3d 822 (68 pages)
  • Propriety and prejudicial effect of prosecutor's argument that defense believes accused guilty, 89 A.L.R.3d 263 (50 pages)
  • Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449 (198 pages)
  • Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8 (115 pages)
  • Counsel's reference in criminal case to wealth, poverty or financial status of defendant or victim as ground for mistrial, new trial, or reversal, 36 A.L.R.3d 839 (58 pages)
  • Violation of federal constitutional rule (Griffin v. California) prohibiting adverse comment by prosecutor or court upon accused's failure to testify, as constituting reversible or harmless error, 24 A.L.R.3d 1093 (125 pages)
  • Prejudicial effect of statement of prosecution as to possibility or pardon or parole, 16 A.L.R.3d 1137 (57 pages)
  • Propriety and prejudicial effect of reference by counsel in civil case to result in former trial of same case, or amount of verdict therein, 15 A.L.R.3d 1101 (35 pages)
  • Propriety and prejudicial effect of reference by counsel in civil case to amount of verdict in similar cases, 15 A.L.R.3d 1144 (26 pages)
  • Comment or argument by court or counsel that prosecution evidence is uncontradicted as amounting to improper reference to accused's failure to testify, 14 A.L.R.3d 723 (125 pages)
  • Propriety and effect of attack on opposing counsel during trial of a criminal case, 99 A.L.R.2d 508 (105 pages)


BACK TO HOME
TOP
   \

Your Honor, I object, but I don' t know why!
Goldberg