Evidence of prior bad acts is admissible unless the only reason for introducing the evidence is to show the defendant’s propensity for committing the crime. In a trial involving a defendant’s sexual assault of children, the prosecutor told the jury, “[t]he best predictor of future behavior is past behavior.” Is that an inaccurate statement of law? The Court of Appeals recently held that it was. This post considers the rule – that incorrect statements of law in closing argument are improper – and its application in this case, State v. Anderson, No. COA23-821 (N.C. Ct. App. Aug 6, 2024).
Permissible Argument
The rules governing closing argument are derived from a variety of sources. By statute, “the whole case as well of law as of fact may be argued to the jury.” G.S. 7A-97. This grants counsel the right to argue the law to the jury. State v. Anthony, 354 N.C. 372, 430 (2001). By statute, by general rule of practice, and by rule of professional conduct, attorneys are exhorted to avoid abusive language, to eschew personal opinions, to confine their arguments to matters of record. See G.S. 15A-1230(a); N.C. Super. Ct. & Dist. Ct. R. 12; Rules of Prof’l Cond. 3.4. Many more of the rules governing the scope of permissible closing argument are scattered throughout the caselaw.
One such rule is that “[t]he district attorney, in his argument to the jury, may not make erroneous statements of law[.]” State v. Harris, 290 N.C. 681, 695 (1976). The defendant in State v. Ratliff, 341 N.C. 610, 616 (1995), broke into his ex-girlfriend’s apartment and killed her new boyfriend. Shortly thereafter, he turned himself in and admitted to police that he had killed the victim. At trial, the defense attorney argued to the jury that the State’s failure to proffer the defendant’s admission suggested that it showed he lacked the requisite intent for first-degree murder. In closing, the prosecutor responded: if the defendant’s statement was exculpatory, why didn’t the defense offer it? As the Supreme Court noted upon review, however, evidence rules precluded the defense from offering the defendant’s self-serving statement. “Incorrect statements of law in closing arguments are improper,” it said, and the State’s argument here was improper. Ratliff, 341 N.C. at 616.
A misstatement of law arises when a prosecutor inaccurately advises the jury that certain conduct constitutes the pertinent criminal offense. See State v. Fletcher, 370 N.C. 313, 322 (2017) (argument that manipulating existing photos constituted manufacturing child pornography was a misstatement of law); State v. Martin, 248 N.C. App. 84, 90 (2016) (assertion that it is armed robbery regardless of whether there is ammunition in the shotgun was misstatement). Or when a prosecutor inaccurately advises the jury as to what legal consequences may be inferred from certain conduct. See State v. Dodd, 330 N.C. 747, 754, (1992) (argument that deliberation could be inferred from flight was misstatement); State v. Salmon, 140 N.C. App. 567, 574 (2000) (argument that the law presumes dangerousness from pointing a deadly weapon was misstatement of law). In addition, attempts at forecasting a sentence under Structured Sentencing “will almost invariably be misleading” and consequently are discouraged. See State v. Lopez, 363 N.C. 535, 541 (2009). By contrast, the prosecutor’s factually accurate assertion that the jury would not hear instructions on heat of passion was not a misstatement of the law. State v. Locklear, 349 N.C. 118, 153 (1998).
In general, however, a proper jury instruction from the judge will cure any misstatement of law by the prosecutor. State v. Goss, 361 N.C. 610, 626 (2007); cf. State v. Rose, 339 N.C. 172, 197 (1994). This is true even if the trial court did not give a specific instruction on the same topic as the alleged misstatement. See Dodd, 330 N.C. at 755 (trial court did not instruct on flight, but proper instruction on pertinent law cured any misstatement); State v. Braswell, 67 N.C. App. 609, 614 (1984) (same). That the trial court overruled an objection to the prosecutor’s closing argument is immaterial when it also instructs the jury to disregard the statement and to rely upon it (i.e., the trial court) for the instructions of law. State v. Vines, 105 N.C. App. 147, 155 (1992). Further, that the jury struggled to reach a verdict does not indicate it misunderstood instructions. See Fletcher, 370 N.C. at 324. Several cases finding no prejudice from alleged misstatements of law have pointed to the prosecutor’s inclusion of a disclaimer to the effect that the judge has the final say on the applicable law. See State v. Anderson, 322 N.C. 22, 38 (1988); Braswell, 67 N.C. App. at 614.
State v. Anderson
Character is usually offered in evidence as tending to show a person did or did not do something. On an issue of wrongdoing, the relevance of such evidence is scarcely open to doubt. 1 Kenneth S. Broun, et al., Brandis & Broun on North Carolina Evidence § 86, at 280 (8th ed. 2018). Evidence that a person is the kind of person who behaves in a certain way almost always has some value as circumstantial evidence of how the person acted on a particular occasion. But such evidence is generally inadmissible. “The reason is the familiar one of prejudice outweighing probative value.” 1 Kenneth S. Broun, et al., McCormick on Evidence § 188, at 748 (6th ed. 2006).
In particular, convicted sex offenders are more likely than any other type of offender to be rearrested for a new sexual assault. State v. Hilton, 378 N.C. 692, 703 (2021); but see State v. Grady, 372 N.C. 509, 540 (2019) (noting conflicting evidence). Indeed, sex offender registration programs have been enacted in every state to address the threat to public safety posed by the recidivist tendencies of convicted sex offenders. State v. Abshire, 363 N.C. 322, 323 (2009); cf. G.S. 14-208.5 (purpose). At the same time, North Carolina courts have been markedly liberal in admitting evidence of other sex offenses committed by a defendant on trial for a sex offense. State v. Beckelheimer, 366 N.C. 127, 130 (2012); State v. White, 331 N.C. 604, 612 (1992).
The defendant in State v. Anderson, No. COA23-821 (N.C. Ct. App. Aug. 6, 2024), was charged with sexually assaulting his two daughters. At trial, the defendant’s niece (then nineteen) testified the defendant had sexually assaulted her when she was five years old. The defendant’s written admission to sexually assaulting his niece was admitted at trial. During the State’s closing argument, the prosecutor asked rhetorically, why does it matter what the defendant did to his niece? What does that tell you about whether he did something to his daughter? The prosecutor continued:
Well, it’s something that in fact does help you make that determination. The best predictor of future behavior is past behavior. One of the things that tells you what—how somebody acts is some things that they’ve done in the past. Now, you don’t convict somebody of something just because they’ve been in trouble in the past, but you look at the circumstances of what they’ve done in the past and see if they help you see a pattern, a common scheme, if they help you determine what somebody’s intent is.
Anderson, Slip Op. p. 6-7. The defendant was convicted of one count of statutory sexual offense with a child by an adult and one count of indecent liberties with a child, and he appealed.
Before the Court of Appeals, the defendant argued that the prosecutor incorrectly explained Evidence Rule 404(b) to the jury. The Court of Appeals cited Fletcher for the proposition that incorrect statements of law are improper. Anderson, Slip Op. p. 17. It noted that Evidence Rule 404(b) permits evidence of other crimes, wrongs, or acts, so long as the evidence is not offered to show propensity. The Court of Appeals said the prosecutor erred when she said, the best predictor of future behavior is past behavior. “This is the exact propensity purpose prohibited by Rule 404,” it said, “[t]herefore, the prosecutor’s closing argument here was improper.” Id., Slip Op. p. 19. The Court of Appeals went on to find, however, that given the ample evidence of the defendant’s guilt, the trial court did not err by failing to intervene ex mero motu. Id., Slip Op. p. 20.
Conclusion
That the Anderson prosecutor had the Rule 404(b) evidence in mind when closing is undeniable. That her observation – “the best predictor of future behavior is past behavior” – was a misstatement of law is debatable. True, Rule 404(b) excludes character evidence offered to prove propensity. But, as the treatises cited above recognize, that is not owing to any fallacy in the assertion. Indeed, the truth of the observation is blindingly obvious. See Heraclitus (ethos anthropoi daimon).
In any event, the most analogous case seems to be Ratliff, not Fletcher. The prosecutor’s rhetorical question in that case constituted a misstatement of law because it asked the jury to draw a negative inference from the defendant’s failure to offer particular evidence, evidence which the Rules of Evidence actually precluded the defendant from offering. Here, the prosecutor asked the jury to draw an inculpatory inference from the Rule 404(b) evidence, evidence which could not have been admitted for the purpose of the inference. In that sense, the State’s argument contained a misstatement of law, the truth of the proposition notwithstanding.
Prosecutors are permitted to argue the law. G.S. 7A-97. Perhaps the Anderson prosecutor could have achieved the same effect by reading to the jury from the statute book: “sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment.” G.S. 14-208.5. No doubt that argument would be open to the same objection, but it would be harder for the defendant to argue that G.S. 14-208.5 contains a misstatement of law. Needless to say, prosecutors wishing to comment on Rule 404(b) evidence should be careful not to ask the jury to infer a propensity of the defendant to commit the crime charged. As additional insurance against prejudicial error, prosecutors who wish to argue the law should remind the jury that the judge has the final say. See Anderson, 322 N.C. at 38. Just don’t say what’s past is prologue.