Trial 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.•
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 [email protected] or [email protected] The opinions expressed are those of the authors.