Jury Argument — Part I

Issues regarding the permissible scope of jury argument are becoming commonplace in N.C. criminal cases. In a series of posts, I’ll address some recurring issues that arise regarding the content of opening and closing arguments. In this first one, I’ll outline the scope of proper jury argument. Two posts that follow will deal with impermissible argument.

It is proper for a lawyer to make the following types of argument to the jury:

• Facts in Evidence and All Reasonable Inferences. A lawyer may argue the facts in evidence and all reasonable inferences from those facts. See, e.g., State v. Phillips, 365 N.C. 103, 135 (2011); State v. Wilkerson, 363 N.C. 382, 423-24 (2009); State v. Jones, 355 N.C. 117, 128 (2002).
• Relevant Law. Counsel may argue to the jury all relevant law, G.S. 7A-97; State v. Thomas, 350 N.C. 315, 353-55 (1999), including reading from a published decision, Thomas, 350 N.C. at 353-55. However, as I’ll note in a later post, a lawyer should not recite the facts and holding of another case and suggest that the matter before the jury should be resolved similarly.
• Positions or Conclusions. During argument a lawyer may “on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.” G.S. 15A-1230(a). Thus, for example, it is proper to argue that the jury should not believe a witness’s testimony. State v. Phillips, 365 N.C. 103, 139-40 (2011).
• Credibility of Witnesses. Provided that counsel does not express a personal opinion as to a witness’s credibility, a lawyer may:
  • argue that witnesses are credible, see, e.g., State v. Wilkerson, 363 N.C. 382, 425 (2009); State v. Augustine, 359 N.C. 709, 725 (2005);
  • argue that the jurors should or should not believe a witness, see, e.g., Augustine, 359 N.C. at 725; State v. Scott, 343 N.C. 313, 344 (1996); and
  • give reasons why the jury should or should not believe a witness, see, e.g., Wilkerson, 363 N.C. at 425 (the prosecutor properly argued that the jurors should believe one witness’s testimony because it was corroborated and that they should believe another’s because it was consistent with the evidence); Augustine, 359 N.C. at 727 (the prosecutor’s argument appropriately focused on reasons why the jury should not believe the witness); State v. Anderson, 322 N.C. 22, 39 (1988) (“In arguing to the jury, the State may comment on any contradictory evidence as a basis for the jury’s disbelief of a witness’s testimony.”).
  • Pretrial Silence. For a discussion about the proper uses at trial of a defendant’s pretrial silence, see my blog post here.
  • Comment on the Defendant’s Failure to Present Evidence. A prosecutor may comment on the defendant’s failure to put on evidence. See, e.g., State v. Phillips, 365 N.C. 103, 138 (2011) (“[t]he State is free to point out the failure of the defendant [ ] to produce available witnesses” and “[t]he prosecution may argue that a defendant failed to produce a witness or other evidence to refute the State’s case”; in this case, the prosecutor merely pointed out that a witness was available who could have corroborated the defendant’s defense, if that defense were valid (citation omitted)); State v. Griffin, 308 N.C. 303, 314 (1983) (prosecutor properly pointed out that aspects of the State’s case had not been contradicted); State v. Jordan, 305 N.C. 274, 279-80 (1982) (proper for the prosecutor to comment on the defendant’s failure to produce an alibi witness).
  • Role of Jury. Although a prosecutor may not argue to the jury that it should lend an ear to the community or decide a case based on community sentiment, the State may argue that a jury is “the voice and conscience” of the community. See, e.g., State v. Barden, 356 N.C. 316, 367 (2002) (argument was proper); State v. Fletcher, 354 N.C. 455, 484 (2001) (same). As the courts have explained, “the jury may speak for the community, but the community cannot speak to the jury.” Barden, 356 N.C. at 367. Also, it is not improper for the prosecutor to argue that by its verdict the jury will “send a message” to the community. See, e.g., Barden, 356 N.C. at 367; State v. Nicholson, 355 N.C. 1, 43-44 (2002). Similarly, prosecutors may outline the function of the various participants in a trial and may make statements concerning the vital importance of jurors to the system of justice and an admonition that the “buck stops here.” State v. Prevatte, 356 N.C. 178, 242-43 (2002); State v. Scott, 314 N.C. 309, 311-12 (1985); State v. Brown, 320 N.C. 179, 204 (1987). Finally, a prosecutor may argue that the jury should do justice for the victim and the victim’s family, provided that the argument does not address the victim’s family’s opinions about the defendant or the crime. Prevatte, 356 N.C. at 269.
  • Display or Use of Evidence. Items that were introduced in evidence may be used during argument. See, e.g., State v. Billings, 348 N.C. 169, 188 (1998) (prosecutor properly played an audio tape of a 911 call when the tape was admitted into evidence); State v. Sidden, 347 N.C. 218, 229 (1997) (photographs introduced into evidence could be used in closing argument by either party); State v. Johnson, __ N.C. App. __, 714 S.E.2d 502, 507-09 (2011) (the trial court did not abuse its discretion by allowing the State to play a video recording during closing arguments when the recording had been admitted into evidence; the fact that the recording was presented in a frame-by-frame manner did not change this result).
  • Specific Deterrence. Although arguments regarding general deterrence are prohibited, the prosecution may make specific-deterrence arguments. State v. Thomas, 350 N.C. 315, 362 (1999); State v. Campbell, 340 N.C. 612, 631-32 (1995) (not improper to argue that the jury should convict the defendant so he could not commit crimes in the future); State v. Chappelle, 193 N.C. App. 313, 328 (2008) (same).

Having outlined several categories of permissible argument, my next posts will address improper argument. [Editor’s note: look for Part II next week.]