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3 things to know about the boundaries of closing arguments

August 28, 2013
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Bell Gaerte 3 thingsTrial lawyers often sit silently at counsel table during closing argument. Criminal defense attorneys, in particular, fear they will alienate the jury by objecting during a critical stage of the trial or they fear their objection will highlight prejudicial evidence. Some criminal defense lawyers have simply figured that most comments are permissible anyway and, therefore, there is no real basis for an objection. After all, an appellate court once found no abuse of discretion after a prosecutor read a poem about a cockroach and analogized the cockroach to the defendant Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000).

However, the recent case of Ryan v. State reminded criminal defense lawyers that a prosecutor’s closing argument has firm boundaries. Ryan v. State, No. 49A02-1211-CR-932, 2013 Ind. App. LEXIS 364 (Ind. Ct. App. July 31, 2013). Ryan was on trial for two counts of sexual misconduct with a minor, both Class C felonies. The facts center on a teacher’s alleged inappropriate relationship with his 14-year-old student. During closing argument, the prosecutor suggested that Ryan went to trial solely because he wanted to “get away” with his crime, that the defense attorney’s argument was an attempt to trick the jury, that the jury needed to send a message with their verdict, and that the alleged victim was telling the truth in her testimony. Despite the lack of an objection from trial counsel, the Court of Appeals ruled that the cumulative effect of the prosecutor’s argument rose to the level of fundamental error, reversed Ryan’s convictions and remanded his case for a new trial.

Here are three things a criminal lawyer should know about the limits of a prosecutor’s closing argument:

1. A prosecutor’s comments on the accused’s constitutional rights cross a boundary.

Ryan’s prosecutor argued that “I want to be really clear, we are here because everyone has the right to have a jury trial. We’re not here because he didn’t do it, we’re here because he wants to get away with it.” The appellate court noted that both the Sixth Amendment to the United States Constitution as well as Article 1, Section 13 of Indiana’s Constitution guarantee a defendant’s right to a jury trial and that this is a “…fundamental linchpin of our system of justice.” Id. at 8; citing Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). A prosecutor’s comment on that right makes its assertion costly, and also impermissibly implies that only guilty people exercise the jury trial right. Id. at 10. The appellate court found that such comments were not inferences from the evidence, but rather rose to the level of prosecutorial misconduct. Id. at 12.

2. A prosecutor’s request for the jury to send a message crosses a boundary.

In Ryan, the prosecutor argued that “…we keep hearing about this happening, whether it’s a teacher, or a coach, or a pastor, whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we’ll be the ones that are here that get to stop it. And you actually do get to stop it … you are in an incredible position to stop it and to send the message that we’re not going to allow people to do this.”

The appellate court was careful to explain that a prosecutor could permissibly argue that “justice was served in this particular case.” Id. at 16. However, given Ryan’s prosecutor’s emphasis that the jury shouldn’t allow “people” to do this, the exhortation could be read to find Ryan guilty in order to stop others from committing sexual misconduct. Id. at 17. As a result, the comments were deemed improper and constituted misconduct.

3. You need to find a way to say “objection” during closing argument.

This lesson is an obvious one, but a reminder never hurts. Because Ryan failed to object to the prosecutor’s arguments, he was only able to prevail on appeal by utilizing the fundamental error doctrine. Fundamental error is “an extremely narrow exception” and a reversal on the grounds of fundamental error is rare. In order to preserve error for appellate review, a defendant usually must request the jury be admonished and if the admonishment is insufficient, move for a mistrial. Id. at 7-8.

In most instances, closing argument is the last time the jury hears from the attorneys prior to deliberations. And, of course, the prosecutor gets the last word. Ryan demonstrates that a defense lawyer can’t simply let improper arguments go to the jury. If counsel is uncomfortable objecting in front of the jury, he or she should consider approaching the bench during closing argument and making a record before the judge. Regardless of the attorney’s trial strategy, the attorney must find a way to preserve the record.•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached via email at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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