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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. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  2. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  3. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

  4. Sounds like overkill to me, too. Do the feds not have enough "real" crime to keep them busy?

  5. We live in the world that has become wider in sense of business and competition. Everything went into the Web in addition to the existing physical global challenges in business. I heard that one of the latest innovations is moving to VDR - cloud-based security-protected repositories. Of course virtual data rooms comparison is required if you want to pick up the best one.

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