OBJECTING TO YOUR OPPONENT'S ARGUMENT
[For a more extensive list of general objections that can be made in a criminal trial,
PROSECUTORS AND ARGUMENT
A public prosecutor stands at a pivotal point in the criminal justice system Unlike other participants in the traditional adversarial process, whose more singular function is to protect and advance the rights of one side, a District Attorney or State's Attorney carries an additional and more sensitive burden. It is not enough for him or her to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, s/he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result. The public prosecutor is a quasi-judicial officer, representing the people of the state, and is presumed to act impartially in the interest only of justice. If s/he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the accused and appeals to prejudice seeks to procure a conviction at all hazards, s/he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment. Thus, as a practical matter, although counsel for the prosecution is typically afforded the widest latitude by way of comment, denunciation or appeal in advocating his cause, summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his or her command. Defenders have the responsibility to identify intemperate conduct aimed at sidetracking or impairing the jury from its ultimate responsibility There are certain well-defined limits from which the prosecutor should not stray.
In some jurisdictions, including my home state (Texas), if the defender fails to object to improper jury argument, the defense will waive any possible error (other than ineffective assistance of counsel). 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 a full opening argument. The defense then follows with hits full argument. The prosecution is then allowed to make a rebuttal argument that is limited to rebutting what the defense argued. If the prosecution makes an improper argument in rebuttal, the defense typically has no remedy other than an objection. 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 caselaw in your jurisdiction and pencil in the applicable cases. Remember that your objection must be timely, your ground must be specific, and 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 a multiple defendant (parties) and the argument is admissible as to other defendants but not yours.
Arguing Matters (Unproven Facts) Not In Evidence : A prosecutor may not refer to matters not in evidence. It is fundamental that the jury must decide the issues on the evidence. For example, in a simple drug possession case it would be improper for the prosecutor to argue with no supporting evidence that the accused was a "drug dealer and a member of an organized narcotics enterprise." This restriction includes evidence that has been stricken or not introduced before the jury. Also, if evidence is admitted for a limited purpose, e.g., a prior inconsistent statement of a witness offered solely for impeachment, it cannot be argued as factually accurate evidence, i.e.,for the truth of its contents. [Note: It is improper to comment on a party's courtroom demeanor other than when s/he was on the witness stand testifying. To do so is to argue regarding facts not in evidence and, if the criminal defendant has not taken the stand, the comment may violate the accused's privilege not to testify. Remember that under the circumstance a criminal defendant has the right to be present in the courtroom and to use his nonverbal conduct as he sits at counsel table as communicative testimonial evidence against him is akin to compelling him to be a witness against himself.
Argument that Assumes the Existence of Unproven Facts: It is improper to assume in argument the existence of evidence that was never introduced. In so doing opposing counsel tries to make herself/himself an unsworn witness to matters that are not in evidence.
Arguing Misleading Inferences (AKA Calling Upon the Jury to Draw Conclusions That Cannot Fairly Be Inferred From the Evidence): It is improper for the counsel to ask the jury to draw conclusions for which their is no factual basis. Stated differently, it is improper for a prosecutor to call upon the jury to draw conclusions which are not fairly inferable from the evidence.
Arguing Misstatements of Evidence
Arguing Evidence Admitted for a Limited Purpose as Though It Were Admissible for All Purpose: It is improper for counsel to argue evidence admitted for only a limited purpose as though it were admitted as probative evidence generally and for all purposes.
Argument Asking the Jury to Draw Conclusions That Are Not Reasonable Inferences from the Evidence
Misleading Courtroom Demonstration as Unfairly Misleading: This objection is appropriate when opposing counsel attempts during argument to perform a misleading demonstration. This would constitute an improper and unprofessional use of the evidence calculated to unfairly influence the jurors.
Using Items in Argument for Purposes of Demonstration When Such Items Have Not Been Placed in Evidence as Demonstrative or Real (Probative) Evidence
Misquoting the Witness: It is improper for counsel in argument to misquote a witness.
Argument That Improperly Refers to Our Failure to Call A Witness(es) That Was Equally Available to Each Side: The reference to a party's failure to call certain witnesses is improper if the party making such an argument had the power and ability to subpoena and call such witness(es). [Note: This objection may not be appropriate if the witness referred to by opposing counsel is particularly within your power to produce.)
Prosecution's Comment Regarding the Defense Failure to Produce Evidence As Improperly Shifting the Burden of Proo: It is error for the prosecution to comment on the defense failure to produce evidence in that it constitutes an improper effort to shift the burden of proof to the shoulders of the defense. Example: The prosecution has unfairly suggested that the defnse has failed to prove facts or circumstances that the defnse has no obligation to prove.
Arguing Misstatements (Improper Statement, Misquotation, Incorrect Paraphrasing) of Applicable Law: It is improper in argument for counsel to misstate (or misquote or incorrectly paraphrase) the applicable law.
Urging the Jurors to Ignore the Law (Jury Nullification): This includes telling the jury that it has the power to render the desired verdict despite the applicable law.
Disregarding the Trial Court's Restrictive Order Limiting the Purpose for Which Evidence is Admissible: The prosecutor errs when s/he argues in disregard of the court's pretrial or trial ruling limiting the purpose for which evidence was admitted. For example, when evidence of uncharged misconduct is admitted for a limited purpose, e.g., showing intent, the prosecutor errs when s/he argues that the evidence shows the defendant's propensity to commit crime.
Vouching for the Credibility of the One's Witnesses: Counsel may not vouch for the credibility of his/her witnesses.
Asserting of Personal Knowledge and Beliefs Concerning Disputed Facts or Guilt of the Accused: Personally vouching for the verity of the evidence is a no-no. See 3.4(e) ABA MRPC. It asks the jurors to rely on an unsworn statment of opposing counsel's person opinion and belief. In effect, opposing counsel, e.eg., the prosecutor, is saying, "I have special personal knowledge about this case. I cannot tell a lie. The defendant is guilty. You can take my word on it."Tip: Avoid the problem of voicing your personal beliefs by substituting "The evidence shows" for "I think/believe."
Asserting or Claiming Personal Expertise:
Impugning the Defense Counsel: Argument that attacks the defender or legitimate defense tactics is improper.The prosecutor cannot, for example, engage in personal attacks on the defense counsel with unsubstantiated accusations of improper conduct or tactics. For example, contrasting the ethical obligations of prosecutors and defenders, accusing the defense of manufacturing evidence, insinuating or implying that the defendant's trial counsel had concocted the defensive theory exceeds the bounds of proper rhetorical comment. In Texas, the shorthand rendition of the objection is phrased as "attacking the defendant over the shoulders of counsel." For example, .
Argument That Comments on the Defendant's Failure to Testify: Accused persons have no obligation to say anything. The accused has a right to remain silent. The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial, and prevents the prosecution from commenting on the silence of a defendant who asserts the right. See Griffin v. California, 380 U. S. 609 (1965). [Note: The TX Ct. Crim. App. said in Wead v. State, 129 S.W. 3d 126 (Tex. Crim App. 2004) that there is a violation of the 5th Amendment only if the prosecutor manifestly intends the comment to, be or the comment is of such a character that a typical jury would naturally and necessarily take it to be, a comment on the defendant's failure to testify."] Argument That Comments on the Defendant's Pretrial (pre/post Miranda): In Doyle v. Ohio, 426 U. S. 610 (1976), the USSC held that impeachment by silence violated the Constitution. In Doyle the defendant received the warnings required by Miranda v. Arizona when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant's credibility on cross-examination by revealing that the defendant remained silent after his arrest. In Doyle the USSC held that it does not comport with due process to permit the prosecution during the trial to call attention to the accused's silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. The United States Supreme Court subsequently held that the use of a defendant's prearrest silence for impeachment purposes does not offend guarantees contained in the United States Constitution See Jenkins v Anderson, 447 US 231 (1980).
Argument That Shifts the Burden of Proof: With regard to the elements of the alleged crime, the prosecution has the burden of pleading, producing, and persuading the jurors beyond any and all reasonable doubt that the accused is guilty. The prosecution may not make arguments that seek to shift its burden of proof. For example, arguing to the jury that in order to find a defendant not guilty the jurors must find that the prosecution witnesses lied is an impermissible attempt to shift the burden of proof from the prosecution to the defendant. The jury is, of course, also obligated to acquit if it finds the evidence, even if completely reliable, insufficient to establish each element of the crimes charged beyond a reasonable doubt. Nor may a prosecutor attempt to shift the burden of proof by implying that the defendant has an obligation to introduce evidence.
Inflammatory Argument That Appeals to Racial, Religious, Political, Economic or Ethnic Prejudice: The prosecutor cannot attack the defendant with abusive labels, e.g "antichrist" or "Osama bin Laden" that are not supported by the evidence.
Argument By the Prosecutor That Personally Addresses the Defendant:
Argument That Calls For Conviction to Meet the Juror's Civic Duty: Prosecutors cannot ask the jury to return a verdict based upon community sentiment, i.e., expectations of the community. Prosecutors who ask the jury to send a "message to the community with a conviction" may also go over the line in deflecting the jury's attention if a guilty verdict would send the desired "message" irrespective of the accused's guilt.
Prosecutor Threatening Jurors ("If you don't do as I ask, I will ___."): The prosecutor cannot threaten or intimidate jurors by telling them that if they do not return the requested verdict it will influence his/her performance of his/her job in the future. For example, it would be improper for the prosecutor to tell the jury in a capital case that if it did not return a death sentence in the case at bar that s/he would never seek the death penalty in any case again.
Name Calling: A prosecutor exceeds the bounds of legitimate advocacy by resorting to name-calling, maledicta, and invective when it it not supported by the evidence.
Suggesting What the Trial Judge Thinks About the Merits of the Case:
Arguing Evidence that Is Highly Prejudicial, Abusive or Inflammatory But of Low Probative Value: Evidence that is highly prejudicial but of low probative worth has traditionally been excluded from criminal trials because it carries with it a grave potential for distorting the search for truth which is at the heart of our adversary system. Often such arguments are designed to appeal to the jurors' emotions, fears, and prejudices. They tend to deflect the jurors' attention from issues of fact on the question of guilt or innocence and cause them instead to focus on achieving vengeance or safeguarding the community. An example might be a prosecutor's "safe streets" argument in a date rape case: "If you acquit the defendant, you are licensing men in this community to go out and rape women they know." If you object to an inflammatory argument, you might consider averring in your objection that by seeking to ignite prejudices the the argument denies the accused his due process right to a fair trial.
Putting the Jurors in the Victim's Shoes and Asking the Jurors What Verdict or Punishment the Victim Would Want or What Verdict or Punishment They Would Want If They Were the Victim It is improper for prosecutors to refer to jurors and their families as possible victims. [Note: In civil cases, so-called "golden rule" arguments, where the plaintiff's lawyer asks the jurors to imagine themselves in the plaintiff's position and award damages that they would want for themselves, are typically forbidden.]
Argument That Invites the Jury to Consider That the Defendant May Not Be Required to Suffer the Full Penalty Imposed:
Argument That Improperly Discusses Punishment During the Guilt Phase of a Bifurcated Jury Trial or In a Jurisdiction Where Punishment Is the Exclusive Province of the Trial Judge):
INVITED ARGUMENT - OTHERWISE IMPROPER ARGUMENTS MADE IN RESPONSE TO STATEMENTS OF THE DEFENSE COUNSEL
A prosecutor's otherwise improper remarks may be allowable if they are in response to or were provoked by arguments of defense counsel. When it appears that the prosecutor has made a seemingly improper argument the appellate court will typically consider the prosecutor's remarks in their relationship to the summation by the attorney for the defendant. [Note: Remember that if your opponent argues facts not in evidence and you have a chance to argue after your opponent, you may be permitted to reply with what otherwise might be objectionable argument outside the record if you make clear that your argument is in response to your opponent's.] [Note also: The USSC has indicated that the prsection 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 instruction.
PRESERVING YOUR OBJECTION TO IMPROPER JURY ARGUMENT
If you object to your opponent's jury argument and the judge overrules your objection, you have preserved any potential error for appeal. But what if the judge sustains your objection? If so, to preserve any error for appeal, you must seek further curative action. The next step would be to ask for a curative instruction from the judge. You do this by asking the judge for an instruction that the jurors disregard the improper argument of opposing counsel. The judge may grant your request for a curative instruction or s/he may deny the request. If the judge denies your request, the error in argument is preserved for appeal. However, if the judge grants your request and gives a curative instruction, as judges who have sustained your initial objection to the argument often do, to preserve any error from the improper argument you must then move for a mistrial. Unless you adhere to the litany of objection, request for a curative instruction and motion for mistrial, to the point of obtaining a negative ruling by the trial court, your opponent's error in making an improper argument in not preserved for appeal. Review of the argument then will be undertaken only if the appellate court is authorized to consider it as plain or fundamental error.
So always remember that to preserve your objection for appeal you have to pursue your objection to a negative ruling from the trial judge. This may require (1) an objection that is sustained, (2) a request for an instruction or admonishment (in some jurisdictions a motion to strike) to the jury that it disregard the opponent's argument that is granted, and (3) finally, a motion for mistrial that is denied. A note of caution, if you get to the point of having to make a motion for mistrial, you have a strategic decision to make because the trial judge may grant your motion. A declaration of a mistrial by the court would mean trying your case over before a different jury. This may not be advantageous to you for various reasons, e.g., you may really like the jury that you have and your chances of a favorable verdict from the present jury, your opponent has had a preview of your entire defensive case. So what do you do? Whether you ask for the mistrial will depend upon the circumstances, but if you do ask for a mistrial, you should consider asserting in your request (motion) for mistrial that the prosecutor's improper argument was intentionally designed "to goad and provoke" you into moving for mistrial in violation of your client's right to protection against double jeopardy. Before you do make the "goad and provoke" assertion, please read Oregon v. Kennedy, 456 U.S. 667 (1982) holding that double jeopardy bars retrial after a defendant successfully moves for a mistrial only when it is shown that the prosecutor engaged in conduct that was intended to provoke the defendant into moving for a mistrial. See also United States v. Dinitz, 424 U.S. 600 (1976). Your goading objection re moving for mistrial might be something like this: "Your Honor, as you know, in order to preserve my objection I must and do move for a mistrial. I would like to make clear that we believe the prosecutor's objectionable argument was intended to goad and provoke a mistrial request by the defense and thereby subject the accused to the burden of multiple trials. We contend and ask to be allowed to show that the prosecutor was acting in intentional bad-faith in making this objectionable argument in order to force a mistrial and prejudice our prospects for an acquittal." [Note: Texas adheres to the narrow rule of Kennedy, see Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2009)]
WHAT CAN PROPERLY BE SAID IN JURY ARGUMENT?
Here are some of the topics that can be covered in jury argument:
- Drawing reasonable inferences (logical conclusions or common sense deductions) from the evidence.
- Displaying exhibits that have been received in evidence
- Answering the argument of opposing counsel
- Prosecutors are allowed to make "a plea for effective law enforcement.
- Explaining the meaning and application of the jury instructions, e.g., rereading portions of the instructions, explaining portions of the instructions in lay language
- Explaining the burden of proof, the presumption of innocence and reasonable doubt
- Explaining the meaning and application oration of the jury instructions,e.g., rereading portions of the instructions,
- Applying the law to the evidence or the lack of it
- Calling attention to the fact that the opposition failed to call certain persons as witnesses [Note: Rule 504(b)(2) TRE states, "Failure of an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel." See Boles v. State, 598 S.W.2d 274 (Tex. Crim. App. 1980)]
- Distinguishing the evidence from hypothetical cases to which the jury instructions might otherwise apply
- Stating facts that are common knowledge
- Using analogies and references to literature
- Presenting or creating visuals that are logical deductions from the evidence
- Explaining the role of jury argument
- Thanking the jurors for their service