Law on closing argument

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Course Title: Evidence

Professor: Charles Nesson

Date: Winter 2007


Traditionally, trial lawyers have considered closing argument a time to provide an unfettered dissertation as to why the jurors should find for their client. There were few boundaries, other than a lawyer was not permitted to ask the jurors to put themselves in the shoes of the client. This was considered a violation of the “Golden Rule” and often resulted in reversal.

Recently, trial and appellate courts have been much more willing to reverse a jury verdict based on statements made during closing argument. Often the courts find that the lawyer violated Rule 3.4(e) of the Model Rules of Professional Conduct. This rule provides that a lawyer shall not:

in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.

In an effort to demonstrate some of the potential boundaries in closing argument, and the statements that can result in a mistrial or reversal, I am providing you the below extensive list of cases throughout the country addressing specific closing arguments.

The cases provided are not considered to be an exhaustive search of state law. Moreover, considering how quickly state law changes, it’s very likely that many of the cases have now been reversed or altered by subsequent decisions. The decisions below are not meant to be cited in briefs to the court, but simply to give you a very good idea of the variety of decisions on closing argument statements, and to provide a starting point for researching the law.

Based on the decisions below, the best policy is to object to improper closing argument as it occurs and seek a curative instruction. Also, ask the court to take a motion for new trial under advisement. After the verdict, if adverse to your client, immediately move for a new trial based on the improper closing statements. If a lawyer does not take each of these steps, the attorney might waive her right to appeal the improper remarks.

Court Decisions

Aetna Cas. and Surety Co. v. Kaufman, 463 So.2d 520 (Fla. 3d DCA 1985): New trial ordered where defense counsel stated “I added all this up at $461,775 and the only thing I see is [plaintiff’s counsel] getting rich.”

Allen v. State, 662 So.2d 323, 328 (Fla. 1995): “To preserve an allegedly improper prosecutorial comment for review, a defendant must object to the comment and move for a mistrial.” “The defendant cannot complain about the prosecutor’s comments when defense counsel emphasized the same information to the jury as part of the defense strategy.”

Allstate Ins. Co. v. Wood, 535 So.2d 699 (Fla. 1st DCA 1988): Reference to insurance may be rendered harmless by a trial court curative instruction to the jury.

Alvarez v. State, 574 So.2d 1119, 1120-21 (Fla. 3d DCA 1991): Personal attack upon accused, his defense, or his counsel is reversible error.

Ballard v. American Land Cruisers, Inc., 537 So.2d 1018 (3d DCA 1988), rev. denied, 545 So.2d 1366 (Fla. 1989): Damage award of $50,000 for mother’s mental pain and suffering caused by child’s death in motor vehicle accident in which child’s father was driving was grossly insufficient, and was explainable only as a result of prejudicial impact of father’s counsel’s repeated references to the tortfeasor’s remorse and inference that father would bear burden of any damage award, which was not true, as the father was insured.

Baptist Hospital v. Rawson, 674 So.2d 777 (Fla. 1st DCA 1996): Arguments in derogation of Rule 3.4(e) that are so pervasive as to affect the fairness of the proceeding will not be condoned even in the absence of objection. Counsel’s comments that defendants were idiots and defense was ridiculous and comments that defense was insulting to jury’s intelligence and that counsel did not understand the defense were reversible error.

Bloch v. Addis, 493 So.2d 539 (Fla. 3d DCA 1986): New trial ordered where plaintiff’s counsel stated that defendant’s expert prepared his notes in the hall and was part of the same country club as the defendant. There was no evidence to support either one of these statements.

Blue Grass Shows, Inc. v. Collins, 614 So.2d 626 (1st DCA), cert. denied, 624 So.2d 264 (Fla. 1993): “We view, with some skepticism, appellant’s agonized cries that comments by opposing counsel deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such the failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfire, save in most rare of circumstances.” Additionally, plaintiff’s counsel’s “conscience of the community” argument at closing in negligence suit, while improper, did not warrant reversal absent objection, particularly as counsel did not follow improper remark with suggestion or request that jury should punish defendant.

Borden, Inc. v. Young, 479 So.2d 850 (3d DCA 1985), rev. denied, 488 So.2d 832 (Fla. 1986): A new trial was ordered when plaintiff’s counsel stated: “Borden, you know with all your resources and all of your assets and everything that you got—you have tried to destroy this family, you have put resources behind your defense that are unreal. They have done things that you can’t possibly imagine and Eddie is supposed to be able to go in and counteract this type of resources. It’s absolutely and totally impossible. They say, but don’t hold it against us. Don’t hold it against Elsie. Well, I got to tell you something. Elsie isn’t the sweet little cow you see on the milk can. Obviously, Elsie is a great big corporation and they are there to do one thing, lay it off on somebody else to take care of this man and this lady for the rest of their lives, lay it off on anybody you can lay it off to.”

Bosch v. Hajjar, 639 So.2d 1096, 1097-98 (Fla. 4th DCA 1994): Defense counsel’s improper expression of personal opinion and citations of facts outside the record in violation of Rule 3.4(e) not reversible because plaintiff’s counsel did not object. “A proper and timely objection would have afforded the trial judge an opportunity to give a curative instruction and remove the prejudice created by appellee’s trial counsel.”

Boutte v. Winn-Dixie Louisiana, Inc., 674 So.2d 299 (La.App.3 Cir. 1996): Closing argument by counsel for supermarket, in slip and fall action brought by patron who was injured in supermarket, that finding of liability by jury would cause cost of goods for supermarket’s consumers, including jurors, to rise, was not supported by admissible evidence, and constituted deliberate resort to local prejudice, and so should not have been allowed. Insinuation by counsel that patron’s medical treatment derived from some “medical/legal machine,” rather than from her legitimate needs, was not supported by admissible evidence, but rather was unduly prejudicial by shrouding patron’s case in anti-lawyer sentiments and averting jury from deciding case before it solely on merits, and so was improper.

Brumage v. Pulmer, 502 So.2d 966 (3d DCA), rev. denied, 513 So.2d 1062 (Fla. 1987): A “send them a message” type argument was not reversible error where no contemporaneous objection was made.

Budget Rent A Car Systems, Inc. v. Jana, 600 So.2d 466 (4th DCA), rev. denied, 606 So.2d 1165 (Fla. 1992): It was improper for counsel to refer to other side’s expert as a “hired gun.”

Carnival Cruise Lines v. Rosania, 546 So.2d 736 (Fla. 3d DCA 1989): The closing argument, “think about how Carnival Cruise Lines defended this particular case,” warranted reversal in view of timely objection. Plaintiff’s counsel also stated: “I didn’t let Mr. Rosania testify.…All he would testify to is he and his wife had a good family life beforehand.”

Cohen v. Pollack, 674 So.2d 805 (Fla. 3d DCA 1996): It was improper for plaintiff’s counsel to state: “How do you judge these damages? Let’s start with pain and suffering. Like [Brittany] felt when [her doctor] operated on her or while she was at home for three weeks in agony, or most importantly, when these headaches keep coming and coming each day, each month. Try this. If a dentist told you he’s got to do a root canal and he’s only going to charge five dollars for the root canal and ninety-five dollars for the Novocain, you would pay that ninety-five dollars.” Counsel also stated: “she [appellees’ witness] told the truth,” “everything we told you is true,” and “everything we’ve been telling you about Brittany Pollack, every single last detail is true.” Counsel also stated: “[appellants’ counsel] and his witnesses will say anything,” “he had to create a defense,” and “he can’t even tell the truth about a picture staring at him.…How can he continue to misrepresent things to the jury.” A new trial was granted.

Commonwealth v. Best, 740 N.E.2d 1065 (Mass.App.Ct. 2001): Even if prosecutor indicated during closing argument that it was jury’s job to return a verdict of guilty, such isolated comment did not require reversal of defendant’s conviction for the distribution of heroin in light of the strength of the Commonwealth’s case.

Commonwealth v. Monzon, 51 Mass.App.Ct. 245, 744 N.E.2d 1131 (2001): Prosecutor’s remark during closing argument that child’s foster mother was “as close to a saint as anyone we can produce in court” was not reversible error, as jury was capable of sorting out excessive claims.

Craig v. State, 510 So.2d 857, 865 (Fla. 1987), cert. denied, 108 S.Ct. 732 (1988): “When counsel refers to a witness or a defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration. There was no impropriety.”

Cummins Ala., Inc. v. Allbritten, 548 So.2d 258 (1st DCA), rev. denied, 553 So.2d 1164 (Fla. 1989): It was not improper for defense counsel to ask jurors “to judge them in light of what you would have done as reasonable people.”

D’Auria v. Allstate Ins. Co., 673 So.2d 147 (Fla. 5th DCA 1996): Defense counsel engaged in character assassinations upon the plaintiff, plaintiff’s counsel, and plaintiff’s witnesses. Counsel repeatedly injected his personal opinions as to the credibility of the witnesses, belittled the plaintiff, appealed to the conscience of the jurors to send a message to the community, and apologized to the jury for the plaintiff’s case. However, because there was no objection and motion for mistrial, a new trial was denied.

Davis v. State, 604 So.2d 794, 797 (Fla. 1992): Prosecutor stated “it might not be a bad idea to look at [the knife] and think about what it would feel like if it was two inches into your neck.” Although comment was improper “golden rule,” it was not reversible because it occurred at the end of lengthy and otherwise unemotional closing argument.

Deck’s Inc. v. Nunez, 299 So.2d 165 (2d DCA 1974), cert. denied, 308 So.2d 112 (Fla. 1975): It is improper to suggest that the jury award enough to cover plaintiff’s attorney’s fees.

Degren v. State, 352 Md. 400, 722 A.2d 887 (Maryland 1999): Allowing prosecutor to tell jury in closing argument that the “number one reason” for not believing what defendant said was that “nobody in this country has more reason to lie than a defendant in a criminal trial” was not error where comment was in response to an attack on credibility of witnesses first raised by defense counsel in his closing argument.

Devlin v. State, 674 So.2d 795 (Fla. 5th DCA 1996): A new trial was denied despite the prosecutor’s making the following statements in closing argument: “She’s a good cop and she’s an honest cop. She’s an honest investigator.” “And I can tell you something, that based on the evidence and the law, I want to just tell you, I submit to you that a not guilty verdict would be contrary to the law and would not be a verdict that speaks the truth.”

Donahue v. FPA Corporation, 677 So.2d 882 (Fla. 4th DCA 1996): Defense counsel violated Rule 3.4(e) when he compared an expert video to the 20/20 video on GMC trucks blowing up and when he compared an expert to lawyers who advertise on benches 1-800-SUE. However, because statements were not objected to and were not fundamental error, no new trial granted.

Dutcher v. Allstate Ins., 655 So.2d 1217 (Fla. 4th DCA 1995): It was improper for counsel to state: “He would like you to think that Dr. Routman is in my hip pocket, but he’s been in cases against me. He’s a good doctor. He’s not on any side. He calls it like it is, and I think you will see that for yourself.” “I don’t think there is a chiropractor that would ever stop someone from having more care.…Folks, asking a chiropractor to cut off another chiropractor is sort of like throwing kerosene on a fire.”

Eastern S.S. Lines, Inc. v. Martial, 380 So.2d 1070 (3d DCA), cert. denied, 388 So.2d 1115 (Fla. 1980): Plaintiff’s counsel’s statement that “I went to Vietnam and I thought I had seen it all” required new trial.

Esty v. State, 642 So.2d 1074, 1079 (Fla. 1994), cert. denied, 115 S.Ct. 1380 (1995): Prosecutor’s comment that defendant was a “dangerous, vicious, cold-blooded murderer” and prosecutor’s “warning” to the jury that neither the police nor judicial system can “protect us from people like that” not so prejudicial as to vitiate the entire trial, even though defendant objected and moved for mistrial.

Fant-Caughman v. State, 61 S.W.3d 25 (Tex. App. 2001): Prosecutor’s improper statement in closing argument that “I could have been here with witnesses for several more days, because there are a lot of people who know about these allegations” constituted reversible error since statement was calculated to cause jury to consider witnesses whose testimony was not admitted into evidence; trial court did not attempt to cure this improper jury argument; and evidence regarding the penetration of the victim, an essential element of the crime, was equivocal.

Fayden v. Guerrero, 474 So.2d 320 (Fla. 3d DCA 1985): Court ordered new trial where plaintiff’s counsel argued that the defendants “should not have defended against the plaintiff’s action but rather should have gone to the plaintiff and put $6,000,000 down on the table for her.”

Florida Crushed Stone Co. v. Johnson, 546 So.2d 1102, 1104 (Fla. 5th DCA 1989): Plaintiff’s counsel’s “conscience of the community” argument at closing in negligence suit was not improper as counsel did not follow improper remark with suggestion or request that jury should punish defendant.

Forman v. Wallshein, 671 So.2d 872 (Fla. 3d DCA 1996): Counsel is permitted to call witnesses “liars” if the evidence supports the statements. Also, counsel’s statements “I believe” and “I think” were merely figures of speech and not improper.

Fowler v. N. Goldring Corp., 582 So.2d 802 (Fla. 1st DCA 1991): Defense counsel’s statement that plaintiff was seeking the “New American Dream” by seeking money in a personal injury lawsuit was reversible error.

Fravel v. Haughey, 727 So.2d 1033 (Fla. 5th DCA 1999): Although comments made by plaintiff’s counsel during closing argument, including comments requesting jury to act as conscious of community and accusing defendant, his attorney and witnesses of perjury, were improper and inflammatory, no new trial in absence of timely objection.

Ganesan v. State, 45 S.W.3d 197 (Tex. App. 2001): Prosecutor’s erroneous statements that “if you acquit that man, you are signing those two women’s death warrants” and “you will be signing the death warrants of those two young women if you acquit this man,” although highly inflammatory, did not require reversal where remarks did not violate mandatory statute or inject new facts into case.

Gardner v. State, 792 So.2d 1000 (Miss. App. 2001): The prosecutor made the following statement in closing argument: “Think about it. Take control of the situation. Take your town back.” Defense counsel objected. The trial judge sustained the objection and made the following order: “The jury will disregard the last comment by the prosecutor. Ladies and Gentlemen: You’ve got to make your decision from the evidence and the law and that alone.” During a recess that immediately followed the closing statements, Gardner made a motion for a mistrial based on the “take your town back” comment made by the state. The court concluded that the natural and probable effect of the improper argument did not create an unjust prejudice against the accused as to result in a decision influenced by the prejudice.

George v. Mann, 622 So.2d 151 (Fla. 3d DCA 1993): Defense counsel’s references to plaintiff’s “lawsuit pain” and suggestion that plaintiff “set up” lawsuit, and implying that plaintiff was a liar who was perpetrating a fraud and concealing evidence, was reversible error even though there was no objection.

Goff v Ontario Ltd., 539 So.2d 1158 (Fla. 3d DCA 1989): New trial ordered where defense counsel stated that VA hospital “doesn’t cost them anything” due to plaintiff’s military veteran status. Motion for mistrial not required to preserve issue on appeal.

Goodin v. State, 787 So.2d 639 (Miss. 2001): Statement by prosecutor at sentencing stage of capital murder case that victim did not have the protection of the law that defendant had received did not require reversal of death sentence in view of overwhelming evidence of defendant’s callous indifference to human life.

Grau v. Branham, 761 So.2d 375 (Fla. 4th DCA 2000): Counsel objected to opposing counsel’s repeated references to a treatise as a “Nazi” source. Counsel objected, but did not move for a mistrial or seek a curative instruction. “Our court has all but closed the door on fundamental error in civil trials.” The attorney made a tactical decision in not requesting a curative instruction and not moving for a mistrial. “The trial court was in a much better vantage point than we are in determining whether the comments vitiated the fairness of the trial and, as such, we must affirm.”

Harne v. Deadmond, 287 Mont. 255, 954 P.2d 732, 1998 MT 22 (1998): Attorney vouching for credibility of his client by telling jury in closing argument about his own favorable experience with client violated rule of professional conduct, and required a new trial where court did not admonish or otherwise instruct jury not to consider improper arguments.

Hawk v. State, 718 So.2d 159 (Fla. 1998): No abuse of discretion in instructing jury to disregard comment regarding “amoral, vicious, cold-blooded killer.” Comments regarding “taking life for granted” and “savage killer” not preserved for appellate review. Comment regarding “insult to all who have achieved greatness” was inappropriate but not reversible.

Hayden v. Elam, 739 So.2d 1088 (Ala. 1999): Statement in closing argument referencing the “under penalty of perjury language” in tax return was improper. However, new trial was not warranted where defendant timely objected, trial court gave curative instruction, defendant made no further objection, and defendant did not move for mistrial.

Hobson v. State, 675 N.E.2d 1090 (Ind. 1996): Defendant failed to show that prosecutor improperly gave personal opinion in calling witnesses liars. Comment merely pointed out incongruities in testimony presented at trial, concluding that someone must not be testifying truthfully and inviting jury to determine which witness was telling the truth.

Jackson v. State, 690 So.2d 714 (Fla. 4th DCA 1997): Prosecutor’s comments in closing argument implying that defendant was a drug dealer were improper where defendant was charged with possession, not sale, of marijuana and cocaine. State’s closing highly inflammatory where prosecutor argued that drugs are the “root of all crime” and that the jury had defendant to “thank for all that.” Trial court abused discretion in denying motion for mistrial.

Jackson Memorial Hosp. v. Geter, 613 So.2d 126 (Fla. 3d DCA 1993): It was improper for counsel to argue that jury should place monetary value on the life of plaintiff’s decedent in the same way value is placed on a “Boeing 747 or a SCUD missile.”

Kendall Skating Centers, Inc. v. Martin, 448 So.2d 1137 (Fla. 3d DCA 1984): Calling defendants “despicable” and their lawyers “liars” mandated reversal.

Klose v. Choy, 673 So.2d 81 (Fla. 4th DCA 1996): It was improper for defense counsel to argue in closing argument that adverse medical malpractice verdict would impact the reputation of the defendant doctor.

Knepper v. Genstar Corp., 537 So.2d 619 (3d DCA 1988), rev. denied, 545 So.2d 1367 (Fla. 1989): New trial ordered where plaintiff’s counsel stressed defendant’s Canadian background and asked the jury to send a message to Canada. Court stated counsel tried to incite the prejudice of the American jury.

Laberg v. Vancleave, 534 So.2d 1176 (Fla. 5th DCA 1988): Defense counsel is not permitted to say that plaintiff’s counsel always asks for ten times more than what he is seeking.

Lowder v. Economic Opportunity Family Health Center, 680 So.2d 1133 (Fla. 3d DCA 1996): Counsel not permitted to argue for an adverse inference that a witness was not called when witness was equally available to both parties. The witness was a former employee, not a present employee, and the witness’ testimony was cumulative, and there was a valid explanation as to why the witness could not be called. Also, phrases such as “I think,” “I believe,” and “I disagree” are figures of speech and do not constitute vouching or expressions of personal opinion.

Martin v. State Farm Mut. Auto Ins. Co., 392 So.2d 11 (Fla. 5th DCA 1980): New trial ordered where defense counsel stated “but if you give her an award, then every time she spends those dollars she’s going to think about this case, and I submit that’s just too much for her to bear.…I think that’s what he’s doing, selling beef.”

Mein, Joest & Hayes v. Weiss, 516 So.2d 299 (Fla. 1st DCA 1987): New trial ordered where defense counsel referred to the “litigious plaintiffs.”

Metropolitan Dade County v. Cifuentes, 473 So.2d 297 (Fla. 3d DCA 1985): Court ordered a new trial as a result of counsel’s stating, “I know last night I did not sleep. I know that last night was probably the first time in a long time that I told my wife that I loved her. I know that I was in fear last night, not fear of dying but fear of living if someone I loved died.”

Miami Beach Texaco v. Price, 433 So.2d 1227 (Fla. 3d DCA 1983): Defense counsel cannot comment that taxpayers will have to pay the award.

Nastri v. Vermillion Bros., Inc., 46 Conn.Supp. 285, 747 A.2d 1069 (1998): Operator of tractor trailer promptly voiced objection to allegedly improper remarks at the end of the opposing counsel’s closing argument, requested curative instruction, and excepted to the court’s failure to give instruction. Such actions were sufficient to preserve for review, in motion to set aside the verdict, contention that opposing counsel’s remarks deprived him of a fair trial.

Owens Corning Fiberglass Corp. v. Crane, 683 So. 2d 552 (Fla. 3d DCA 1996): Counsel impugning the credibility of the other party by accusing the party or counsel of fabricating evidence or misleading the jury is fundamental error.

Parker v. Todd, 695 So.2d 424 (Fla. 4th DCA 1997): It was improper for defense counsel to argue: “Our society is such that, for whatever reason, it seems that we’ve gotten to the point where every time something happens, it has to be somebody’s fault. Even criminals in courtrooms now blame the system, their parents’ upbringings, their schooling; it’s somebody else’s fault.” “We find the remarks to be also improper because they referred to matters outside of the evidence. Reference to ‘criminals’ not accepting responsibility for their actions simply had no place in this lawsuit. By conjuring up distasteful images of society’s ills from frivolous lawsuits to the refusal to take responsibility for one’s own actions, these remarks diverted the jury’s attention from the issues it should have been deciding.”

Parker v. State, 641 So.2d 369, 375 (Fla. 1994), cert. denied, 115 S.Ct. 944 (1995): Prosecutor’s statement that defense counsel’s argument was “fantasy” was not reversible error as the statement was fair comment on, and perhaps invited by, defendant’s closing.

People v. Knapp, 244 Mich. App. 361, 624 N.W.2d 227 (2001): Reversal of conviction for second-degree criminal sexual conduct was not warranted for prosecutor’s vouching for victim’s credibility at closing argument. Defendant failed to object, a curative instruction would have removed any taint, and jury was instructed that lawyers’ arguments were not evidence.

Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993): Counsel is not permitted to comment on the amount of money spent by other side in defending itself, and cannot ask the jury to send a message to a non-party witness.

Russell, Inc. v. Trento, 445 So.2d 390 (Fla. 3d DCA 1984): New trial ordered where plaintiff’s counsel stated that he had lived with the case and represented the plaintiff for three years and had carried the burden for three years in representing the family. Counsel also stated, “In our society, we value life very preciously.…You six people have the ultimate say-so on what a life is worth and what [the deceased’s] life was worth to Mrs. Trento.” The court found that the value of human life is not an element of damages under Florida law.

S. H. Investment and Develop. Corp. v. Kincaid, 495 So.2d 768 (5th DCA), rev. denied, 504 So.2d 767 (Fla. 1987): Court ordered a new trial when plaintiff’s counsel stated, “If you weren’t as incensed by what you heard as I was as I began to uncover the facts of this case, if you’re not upset, if you’re not bothered by the conduct of these corporations and the absolute insensitivity they have to people’s rights and something that they hold so dearly as a home, then I have failed you and I have failed my clients. Never have I seen so much evidence; never have I seen so many strong fingers of guilt pointing to the culpable parties.” Plaintiff’s counsel also stated that his client’s statements were true, honest and candid.

Sacred Heart Hospital v. Stone, 650 So.2d 676 (1st DCA), rev. denied, 659 So.2d 1089 (Fla. 1995): New trial granted where plaintiff’s counsel contended that the defense’s theory was “ridiculous,” where counsel informed the jury that his client had told him that he believed one of the defense experts was lying, where counsel said, “I think he did an exceptional job,” and where counsel told the jury to deal “very, very harshly” with defendants. New trial granted even though defendant did not object or raise issues in motion for new trial.

Sanchez v. State, 792 So.2d 286 (Miss. App. 2001): Prosecutor’s conjecture during closing argument that those who commit predatory crimes use alcohol or marijuana as an excuse for their acts did not constitute reversible error, where prosecutor clarified to jury that he was in no way asserting that the defendant had been using marijuana.

Schubert v. Allstate Ins. Co., 603 So.2d 554 (5th DCA), rev. dismissed, 606 So.2d 1164 (Fla. 1992): Defense counsel’s statement that plaintiff’s doctor always found a permanent impairment, plaintiff was seeking a large fortune, plaintiff’s child is going to think that a lawsuit is the way to get ahead, that plaintiff should be thankful he wasn’t injured more seriously, that defense counsel was telling the truth, and that plaintiff’s counsel would do anything to advance his cause was reversible error even without objection.

Shaffer v. Ward, 510 So.2d 602 (Fla. 5th DCA 1987): It was not fundamental error when the jury was asked to place themselves in a non-financial responsibility position like client’s. Defense counsel stated that “everyone has had a close call driving, close calls don’t mean you’re negligent. It was a close call because the car in front of you unexpectedly stopped.” Defense counsel also stated, “you all drive. You know the importance of brake lights.”

Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993): Counsel’s statement that he did not believe plaintiff, and that jury should disregard plaintiff’s testimony, and that chiropractors give permanent impairment more readily than other doctors was reversible even though plaintiff’s counsel did not object.

Simmons v. Swinton, 715 So.2d 370 (Fla. 5th DCA 1998): Defense counsel stated that the plaintiff’s treating physician had self-interested motives in assigning plaintiff a permanent impairment rating, and stated that “based on his care, we know that he was negligent.” Defense counsel made numerous statements that alluded to matters not in evidence and made statements of personal opinions as to the credibility of witnesses. New trial was denied because plaintiff failed to object and such failure was a tactical decision.

Simmons v. Lowrey, 563 So.2d 183 (Fla. 4th DCA 1990): It was not impermissible “golden rule” argument for plaintiff’s counsel to ask the jury as they listened to the case “to think about what you would pay someone for one day of what you will hear she has to go through for the rest of her life.”

State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000): Prosecutor’s improper remarks during closing argument, including his accusing defendant of lying, coupled with trial court’s overruling defendant’s timely objection, denied defendant a fair trial and required a reversal.

State v. Hazley, 19 P.3d 800 (Kan. App. 2001): Prosecutor’s comments during closing argument expressing personal opinion on credibility of sole defense witness, focusing on post-Miranda silence of same witness, and inaccurately accusing defense attorney of arguing that officer who conducted search leading to present charges had lied during his testimony, denied defendant a fair trial and constituted reversible error.

State v. Magdaleno, 17 P.3d 974 (Kan. App. 2001): Prosecutor’s statements during closing argument, labeling defense counsel a liar by saying she had “argue[d] facts that she knows [aren’t] true” and making other similar statements, reflected ill will on the part of prosecutor toward defendant and was gross and flagrant misconduct, and constituted reversible error.

State v. Pouncey, 241 Conn. 802, 699 A.2d 901 (1997): Prosecutor’s improper comments during closing argument that victims “were confronted with what suburbanites would call the ultimate urban nightmare,” and that victims “were in the wrong place at the wrong time in an urban neighborhood,” were not so offensive as to have had bearing on jury’s verdict. The objectionable remarks were brief, isolated, and not so prejudicial as to prompt immediate objection by defendant. There was no evidence that comments were product of deliberate appeal by prosecutor to racial biases or stereotypes, reversal would have forced victims to relive emotional trauma they suffered as result of attack, and potential for memory loss by victims and witnesses was legitimate concern given lapse of time from incident.

State v. Bureau, 134 N.H. 220, 589 A.2d 1013 (1991): Prosecutor did not improperly vouch for credibility of victim during closing argument by referring to victim’s testimony as “the truth.” Defense counsel had continually attacked victim’s credibility by stating that victim’s testimony “just didn’t make sense.”

State v. Satchwell, 244 Conn. 547, 710 A.2d 1348 (1998): Defendant was not entitled to new trial based on prosecutor’s improper closing remarks suggesting that redacted transcript pages of plea hearing were relevant to case. Defendant promptly objected to the remarks, and trial court immediately instructed jury to disregard remarks. Defendant made no claim at trial, and made no claim on appeal, that cautionary instruction given to jury was incomplete or otherwise defective, and prosecutor promptly apologized for his comments.

State v. Oehman, 212 Conn. 325, 562 A.2d 493 (1989): Prosecutor’s comment during closing argument that defendant was a “spoiled killer with a gun” was an improper statement. However, such statement did not deny defendant a fair trial in a murder case, where comment was not part of a pattern of strident and repeated misconduct. Prosecutor’s comments during closing argument characterizing defendant as a liar, coward, and person without principles were supported by the evidence presented and did not deny defendant a fair trial. Prosecutor’s comments during closing argument concerning his belief in credibility of various state witnesses, although improper, did not deny defendant a fair trial. Comments were made immediately prior to the attorney’s recapitulation of the witness testimony, and were not part of pattern of prosecutorial misconduct.

State v. Lafferty, 20 P.3d 342, 368, 415 Utah Adv. Rep. 29 (2001): In a particularly gruesome murder trial, prosecutor said the following: “Erica Lafferty, Brenda and Allen’s daughter, would have turned 13 years old this year; in fact, this month.…When baby Erica showed up on this man’s death list it told you more about his character than all the witnesses, all the friends and acquaintances, all the experts that the defense called on his behalf. It demonstrated a blatant and callous disregard for life, for innocent human life. And if for no other reason, justice demands that Erica’s murder result in punishment, too. If you determine that the defendant deserves life without parole before we even consider Erica lying dead in her crib, before we ever consider that the second person he killed was a 15-month-old infant, then there’s only one punishment left that is meaningful, and that is death.” The court held that the prosecutor’s comments did not constitute victim impact evidence. The information did not tell [the jury] about her character, the impact the death had on her family, or her family’s opinions about the crime. Additionally, these details were already properly admitted at trial. Court noted that a prosecutor has the right to draw inferences and use the information brought out at trial in his closing argument.

Stokes v. Wet N’ Wild, 523 So.2d 181 (Fla. 5th DCA 1988): New trial granted where defense counsel stated: “I don’t mean to insult your intelligence and please excuse me if I do. This adds up to $48,300 and it is absolutely ridiculous. This is why we’re here. This is why our courtrooms are crowded and this is why we read articles in the newspaper, because of things like that.”

Tito v. Potshnick, 488 So.2d 100 (4th DCA), rev. denied, 494 So.2d 1152 (Fla. 1986): New trial ordered where defense argued, “I think each and everyone knows that this young lady is an attractive young lady, that this boy is going to have a father.…This boy is going to have a father sometime in the future. There is no doubt [of] that as attractive as she is.”

Trump v. State, 753 A.2d 963 (Del. Supr. 2000): Prosecutor’s closing argument stating, “I submit to you” that the child victim of sexual assault was telling the truth was improper vouching for the credibility of a witness.

Venet v. Garcia, 433 So.2d 53 (Fla. 3d DCA 1983): It was improper for defense counsel to state “but for the Grace of God all of us would be in this position.”

Wilbur v. Calvin Hightower, 778 So.2d 381 (Fla. 4th DCA 2001): Plaintiff’s argument referring to the price of paintings sold at auction was not an argument that jury should place monetary value on decedent’s life, but rather on her surviving spouse’s loss. Thus, argument was proper.

Williams v. State, 911 S.W.2d 788 (Tex. App. 1995): Prosecutor’s statement to the jury that it should “ask defense to at least present you with a consistent defense” was not extreme or manifestly improper, and did not inject new and harmful facts into evidence, and thus was not reversible error where instruction in court’s charge clearly set out the burden of proof.

Harvard Law School, “Evidence” © Martin Levin

The Law of Closing Argument, Page

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