Last month, the North Carolina Court of Appeals decided State v. Copley, __ N.C. App. __, 2019 WL 1996441 (May 7, 2019), in which a divided panel held that the trial court abused its discretion by overruling the defendant’s objections to the prosecutor’s remarks about race during closing argument. For that reason, the Court vacated the defendant’s first degree murder conviction. This post discusses the law governing when parties in a criminal trial may discuss issues of race, as well as emerging strategies for mitigating the effects of implicit racial bias on decision-makers. Continue reading
Tag Archives: closing argument
Who Goes Last?
In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?
In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?
The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.
That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting. Continue reading →
During the second phase of a capital trial, the jury must decide whether to sentence the defendant to death or to life in prison. The jury’s perception of prison life may influence that decision. If the jury believes that prison life is comfortable, it may be more inclined to impose a death sentence, while if it believes that prison life is difficult, it may be more likely to return a verdict of life in prison. But is the quality of prison life relevant to any aggravating or mitigating circumstance? Should the parties be permitted to introduce evidence about, and to argue about, what prison life is like? This post tackles those questions.
What is prison life evidence? Prison life evidence concerns the quality of life in prison, including the amenities and activities that are available, or are not available, to inmates. Either party may seek to introduce such evidence, and the witnesses through whom it might be introduced include correctional officials, prison consultants, and inmates. As noted at the end of this post, prison life evidence is not the same as evidence about the defendant’s ability to adapt to prison life.
Is it admissible? Courts generally have ruled that prison life evidence is not admissible. At a capital sentencing hearing, the rules of evidence don’t apply, and any evidence that is “probative” may be admitted. G.S. 15A-2000(a)(3). The jury’s task is to identify and weigh aggravating and mitigating circumstances, so “probative” evidence means evidence that is relevant to one or more such circumstances. Prison life evidence doesn’t bear on any of the enumerated aggravating factors in the statute, so I don’t see any basis for the State to introduce such evidence. Nor does such evidence relate to any of the enumerated mitigating circumstances. And although the statute contains a catchall mitigating circumstance, G.S. 15A-2000(f)(9) (“Any other circumstance arising from the evidence which the jury deems to have mitigating value.”), prison life evidence doesn’t seem to fit there, either. The Supreme Court has held that a defendant is entitled to present, as a mitigating circumstance, “any aspect of a defendant’s character or record and any of the circumstances of the offense” that may serve to support a sentence less than death. Lockett v. Ohio, 438 U.S. 586 (1978). But prison life evidence has nothing to do with the defendant’s character or record or the circumstances of the offense, and so appears to fall outside the scope of mitigation.
I am not aware of a North Carolina case on point, but courts in at least three other states have addressed this issue, and all have ruled that evidence about prison life is inadmissible:
- State v. Kleypas, 40 P.3d 139 (Kan. 2001) (trial court correctly excluded “evidence regarding the conditions and effects of a life sentence in the Kansas correctional system”; such evidence was not mitigating in itself and was “too far removed” from the defendant’s ability to adapt to prison life to be admissible in support of that mitigating circumstance; the court did note that “[s]uch evidence might be admissible in rebuttal to counter . . . evidence produced by the State showing that life in prison is . . . easy”)
- People v. Ervin, 990 P.2d 506 (Cal. 2000) (citing previous California precedents and ruling that the trial court correctly excluded testimony from a “prison consultant” concerning “the security, classification, and management of inmates sentenced to prison for life without possibility of parole”)
- Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999) (defendant sought to introduce evidence regarding “the general nature of prison life” through “an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence”; the trial court properly excluded this evidence as “not relevant mitigation evidence”)
A few readers may be interested in this motion in limine by the prosecution in a Colorado case, seeking to exclude prison life evidence.
What about arguments related to prison life? There are a number of North Carolina cases about the propriety of closing arguments referring to the quality of prison life. All of the cases I found concern remarks made by the prosecutor, though the courts’ rulings appear to apply equally to remarks by defense counsel. I’ve summarized the cases below, but in general, (1) arguments about prison life that aren’t supported by the evidence are improper, and (2) absent an objection, they aren’t normally so improper as to require the trial judge to intervene or to require reversal on appeal.
My sense is that the more detailed the arguments are, and the more they refer to specific activities and amenities, or to specific privations and hardships, that are not in evidence, the more troubling they are. General remarks that are obviously true are not very concerning. For example, an argument by the State that “in prison, the defendant will enjoy nutritious meals and an opportunity to interact with other inmates” is relatively benign, as is a defense argument that “in prison, the defendant will be behind bars, locked away from the free world with time to think about what he has done.” On the other hand, detailed and possibly erroneous recitations of leisure activities that will be available to the defendant, or of difficulties that the defendant will face, are more likely to be objectionable.
Here are the cases on point, from older to newer. The newer cases seem to reflect a bit more skepticism about arguments about prison life.
- State v. Reeves, 337 N.C. 700 (1994) (during closing argument, the prosecutor stated that if the defendant were sentenced to life in prison, he would enjoy a “cozy little prison cell” with television, “air conditioning and three meals a day”; the defendant did not object at trial but on appeal argued that there was no evidence in the record to support these claims; the supreme court ruled that “[t]he prosecuting attorney was arguing that the defendant would lead a comfortable life in prison” and that “[i]f he used some hyperbole to describe that life it was not so egregious as to require the court to intervene ex mero motu”)
- State v. Alston, 341 N.C. 198 (1995) (during closing argument, the prosecutor denigrated life in prison by stating that it is “difficult to be penitent with televisions, and basketball courts, and weight rooms”; this was not improper and simply “emphasized the prosecution’s position that life in prison was not an adequate punishment”)
- State v. Holden, 346 N.C. 404 (1997) (at a capital resentencing hearing, “a prison guard testified that defendant was permitted to watch television, play cards, lift weights, play basketball, go to the music room, and eat lunch with other inmates”; the admissibility of this evidence was not addressed in the opinion; at closing argument, over a defense objection that the argument was irrelevant and speculative, the prosecutor contended that “if the jury recommended life imprisonment, defendant would be able to watch television, play cards, play basketball, listen to music, and eat lunch with fellow inmates”; the supreme court found the argument permissible under Alston and stated that it was reasonable to infer that the defendant would continue to enjoy the privileges to which the guard testified)
- State v. Smith, 347 N.C. 453 (1998) (briefly, citing Alston, the supreme court ruled that the trial judge did not err by failing to intervene ex mero motu when the prosecutor argued “that if defendant were sentenced to life in prison, he would spend his time comfortably doing things such as playing basketball, lifting weights, and watching television”)
- State v. May, 354 N.C. 172 (2001) (citing Smith and Alston, the supreme court ruled that although “the prosecutor improperly argued facts not in the record” by asserting that the defendant would play cards, go the gym, and watch TV while in prison, the impropriety was not so severe as to require the trial judge to intervene without a defense objection)
- State v. Taylor, 362 N.C. 514 (2008) (although the prosecutor argued facts outside the record by remarking “that defendant would potentially be able to do the following while in prison: visit with his mother and sisters, eat his meals and drink his coffee, watch the sun rise, exercise, watch television, read, draw, receive an education, and enjoy the fresh air,” the comments were not so grossly improper as to require ex mero motu intervention by the trial judge)
Ability to adapt to prison life is a separate question. Evidence of the defendant’s ability to adapt to prison life is admissible generally is admissible in mitigation. Skipper v. South Carolina, 476 U.S. 1 (1986) (explaining that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination”); State v. Green, 336 N.C. 142 (1994) (trial court erred in refusing to submit the nonstatutory mitigating circumstance that the defendant “will continue to adjust well to prison life and be a model prisoner”). Some facts about prison life might be admissible in support of this mitigating circumstance, but this post doesn’t attempt to identify or classify the facts that would be admissible for that purpose.
When the Defendant Is an Animal
As Jessie noted in a previous post, when a prosecutor is making his or her closing argument, “caution should be exercised with regard to all comparisons between the defendant and an animal.” But what if the defendant is an animal?
A South Carolina judge recently appointed an attorney to represent a pit bull alleged to have attacked and seriously injured a five-year-old boy. To one way of thinking, it’s a death penalty case, as the judge may order that the dog be euthanized.
Technically, I’m sure that the South Carolina dog isn’t charged with a crime, but instead faces euthanasia under the dangerous dog laws. However, the Wall Street Journal notes here that there is precedent for true criminal prosecutions of animals. Indeed, there is a 1906 reference work entitled The Criminal Prosecution and Capital Punishment of Animals, which describes cases such as the 1519 prosecution of field mice in Stelvio, Italy (after the appointed defense attorney’s impassioned closing argument, the judge “exiled the male adult mice immediately but gave young and pregnant mice 14 days to pack up and leave”), and the 1386 French prosecution of a pig charged with murdering an infant (she was convicted and hanged, but her piglets, charged as accessories, were acquitted on the grounds that “they were victims of their mother’s bad example”).
More recently, it appears that a lawyer was appointed to represent the interests of the dogs involved in the Michael Vick dogfighting case, though I assume that those dogs’ role in that case was more as victims than as defendants. As an aside, when an animal is the victim of cruel treatment, North Carolina has a unique statute that allows “any person” to seek an injunction against the cruelty, even if the person has no ownership or other direct interest in the animal. G.S. 19A-1 et seq.
I couldn’t quickly find any cases in North Carolina in which a lawyer represented an animal directly. But my impression is that it is not uncommon for lawyers to represent the owners of animals who are alleged to be vicious. In fact, at least one North Carolina lawyer actively seeks out cases of that kind.
I assume that referring to an allegedly dangerous dog during closing arguments as a “bloodthirsty, vicious cur” isn’t grounds for a new trial, but perhaps lawyers with experience in this type of litigation could weigh in.
Jury Argument — Part III
In a prior post on this topic, I began outlining some impermissible types of jury argument. In this post, I’ll continue that discussion with the following additional listing of improper argument:
- Religious Arguments. The N.C. Supreme Court has repeatedly cautioned against jury arguments based on religion, see, e.g., State v. Barden, 356 N.C. 316 (2002), reasoning that they “inevitably pose a danger of distracting the jury from its sole and exclusive duty of applying secular law and unnecessarily risk reversal of otherwise error-free trials.” Id. at 358 (quotation omitted).
- Name Calling. Name calling should be avoided in jury argument. N.C. R. Super. and Dist. Cts Rule 12; State v. Augustine, 359. N.C. 709, 736 (2005); State v. Jones, 355 N.C. 117, 133-34 (2002). Specifically, it is improper to refer to the defendant as:
- a liar, see, e.g., State v. Gell, 351 N.C. 192, 211 (2000);
- a parasite, State v. Twitty, __ N.C. App. __, 710 S.E.2d 421, 426 (2011);
- the devil, satan, or a demon, see, e.g., State v. Matthews, 358 N.C. 102, 111 (2004);
- a monster, Id. at 111;
- a S.O.B., State v. Davis, 45 N.C. App. 113 (1980); or
- a criminal, State v. Miller, 271 N.C. 646, 660-61 (1967) (“habitual storebreakers”); State v. Wyatt, 254 N.C. 220, 222 (1961) (“two of the slickest confidence men”); State v. Correll, 229 N.C. 640, 643 (1948) (“racketeering gangster”).
It also is improper to compare the defendant to Hitler or to a Nazi. State v. Walters, 357 N.C. 68, 102-05 (2003); State v. Frink, 158 N.C. App. 581, 593-94 (2003).
- Comparing Defendant to an Animal. Although a prosecutor may use the phrase “he who hunts with the pack is responsible for the kill” to illustrate the legal theory of acting in concert, see, e.g., State v. Bell, 359 N.C. 1, 20-21 (2004), caution should be exercised with regard to all comparisons between the defendant and an animal and the “hunts with the pack” argument has been held improper when used in a way that goes beyond “noninflammatory remarks.” See, e.g., State v. Roache, 358 N.C. 243, 297-98 (2004); State v. Jones, 355 N.C. 117, 134 (2002); State v. Smith, 279 N.C. 163, 165-67 (1971); State v. Ballard, 191 N.C. 122, 124-25 (1926).
- Argument Regarding Defendant’s Appearance. It is improper to argue that a defendant should be convicted simply because of how he or she looks. See, e.g., State v. Tucker, 190 N.C. 708 (1925) (“look at the defendants, they look like professed (professional) bootleggers; their looks alone are enough to convict them”).
- Racial References. Racial references should be avoided unless relevant to the case. State v. Diehl, 353 N.C. 433, 436 (2001).
- Referring to Tragic National Events. It is improper for the prosecutor refer to national tragedies such as the Columbine school killings, Jones, 355 N.C. at 132-33, the 9/11 terrorist attacks, State v. Millsaps, 169 N.C. App. 340, 348-49 (2005), or the Oklahoma City federal building bombing, Jones, 355 N.C. at 132-33. Such remarks refer to matters outside the record, urge the jurors to compare the defendant’s acts to others’ infamous acts, and attempt appeal to the jurors’ passion and prejudice. Jones, 355 N.C. at 132.
- Personal Experiences. During a closing argument a lawyer may not inject his or her personal experiences. G.S. 15A-1230(a); Jones, 355 N.C. at 127.
- Personal Beliefs. During a closing argument a lawyer may not express his or her personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant. G.S. 15A-1230(a); see, e.g., Jones, 355 N.C. at 127. Thus, a lawyer should not state a personal belief that a witness is lying or being truthful. See, e.g., State v. Phillips, 365 N.C. 103, 139 (2011); State v. Wilkerson, 363 N.C. 382, 424-25 (2009). Also improper is an expression of personal belief as to the strength of the State’s case or of a defense. See, e.g., State v. Matthews, 358 N.C. 102, 110-12 (2004).
- Personal Attacks on Opposing Counsel. In argument to the jury, lawyers should not engage in personal attacks on opposing counsel. N.C. R. Super and Dist. Cts. Rule 12; see, e.g., State v. Grooms, 353 N.C. 50 (2000); State v. Rivera, 350 N.C. 285, 290-91 (1999).
- Personal Attacks on Witnesses. “Adverse witnesses and suitors should be treated with fairness and due consideration. Abusive language or offensive personal references are prohibited.” N.C. R. Super. and Dist. Cts. Rule 12; see also State v. Phillips, 365 N.C. 103, 138-39 (2011). Thus, scatological references to a witness’ testimony are improper. State v. Smith, 352 N.C. 531, 560-61 (2000) (“manure”).
Although the prosecutor may to impeach the credibility of an expert during closing argument, a prosecutor should not insinuate that a witness would perjure himself or herself for pay. State v. Vines, 105 N.C. App. 147, 156 (1992). It is also improper to malign the expert’s profession. State v. Smith, 352 N.C. 531, 561 (2000).
- Asking Jurors to Put Themselves in the Victim’s Position. It is improper for the prosecutor to ask the jurors to put themselves in the victim’s place. State v. Roache, 358 N.C. 243, 298 (2004); State v. Prevatte, 356 N.C. 178, 244 (2002).
- Role of the Jury. It is improper for the prosecution to argue that the jury should lend an ear to the community, see, e.g., State v. Golphin, 352 N.C. 364, 471 (2000), or decide a case based on public sentiment, State v. Conaway, 339 N.C. 487, 529 (1995); State v. Scott, 314 N.C. 309, 311-14 (1985).
- Forecasting a Sentence under Structured Sentencing. The courts have warned that “even a well-intentioned argument purporting to forecast a sentence under Structured Sentencing will almost invariably be misleading” and should be avoided. State v. Lopez, 363 N.C. 535, 540-42 (2009).
- General Deterrence. It is improper for the prosecution to argue general deterrence (that the jury should find the defendant guilty to deter others from committing crime). See, e.g., State v. Abraham, 338 N.C. 315, 339 (1994).
- Appealing to Juror’s Fears. It is improper to make an argument designed to appeal to the jurors’ fears, such as a suggestion that if the defendant is acquitted he or she might harm a member of the jury. State v. Berry, 356 N.C. 490, 522 (2002).
- Appellate Review and Other Post-Conviction Procedures. It is improper for counsel to speculate on the outcome of possible appeals, paroles, executive commutations or pardons. See, e.g., State v. Hunt, 323 N.C. 407, 428 (1988); State v. Jones, 296 N.C. 495, 497-500 (1979).
Although this series of posts doesn’t provide exhaustive lists of permissible and impermissible argument, hopefully it will help keep you out of trouble.
Jury Argument — Part II
In a prior post on this topic, I addressed permissible jury argument. In this post and one that follows [editor’s note: coming next week], I address impermissible argument.
The courts have identified several types of arguments that are improper. They include:
- Abusive Arguments. During a closing argument a lawyer may not become abusive. G.S. 15A-1230(a); N.C. R. Super. and Dist. Cts. Rule. 12 (“Abusive language [is] prohibited”); State v. Matthews, 358 N.C. 102, 111-12 (2004) (inappropriate to refer to the defense case as “bull crap”); State v. Jones, 355 N.C. 117, 127 (2002) (citing the statute); see also State v. Gillikin, __ N.C. App. __, 719 S.E.2d 164, 171 (2011) (gross impropriety where the prosecutor engaged in abusive name-calling and expressed his opinion that defendant was a liar and was guilty).
- Lack of Dignity or Propriety. During jury argument lawyers must conduct themselves with “dignity and propriety.” N.C. R. Super. and Dist. Cts. Rule 12; see also Gillikin, __ N.C. App. __, 719 S.E.2d at 171 (entire argument was undignified).
- Arguments Appealing to Passion or Prejudice. It is improper to make an argument designed to appeal to the jurors’ passions or prejudices. See, e.g., Jones, 355 N.C. at 132-33 (reference to the Columbine school shooting and Oklahoma City federal building bombing was an improper attempt to lead jurors away from the evidence by appealing instead to their sense of passion and prejudice).
- Lack of Candor and Unfairness. “The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness.” N.C. R. Super. and Dist. Cts. Rule 12. Thus, for example, counsel should not “‘not knowingly misinterpret . . . the language or argument of opposite counsel.’” State v. Phillips, 365 N.C. 103, 136-37 (2011) (quoting R. 12; prosecutor improperly suggested that defense counsel had admitted the defendant’s guilt to first-degree murder).
- Matters Outside the Record. A lawyer may not make arguments based on matters outside the record except for matters that are the proper subject of judicial notice. G.S. 15A-1230(a). Thus, a lawyer may not argue facts that are not in evidence. See, e.g., State v. Jones, 355 N.C. 117, 132 (2002) (improper to refer to events outside of the record); State v. Caldwell, 68 N.C. App. 488, 489 (1984) (improper to make assertions about why a witness did not testify when explanation was not supported by the evidence); see also N.C. R. Prof’l Conduct Rule 3.4(e) (lawyer may not “allude to any matter . . . that will not be supported by admissible evidence”). Additionally, a lawyer may not introduce into argument legal rulings of the trial court. State v. Allen, 353 N.C. 504, 508-11 (2001) (new trial required; prosecutor argued with respect to admitted hearsay statements: “the Court let you hear it, because the Court found they were trustworthy and reliable . . . . If there had been anything wrong with that evidence, you would not have heard that”; the court cautioned: “Parties in a trial must take special care against expressing or revealing to the jury legal rulings which have been made by the trial court, as any such disclosures will have the potential for special influence with the jurors.”).
- Irrelevant Statements of the Law. Although counsel may argue all relevant law, it is improper to argue points of law that have no bearing on the case at hand. See, e.g., State v. Gardner, 316 N.C. 605 (1986).
- Incorrect Statements of the Law. It is improper to misstate the law during jury argument. This means that counsel may not:
- present a statement of the law out of context, see, e.g., Gardner, 316 N.C. at 610,
- read from a dissenting opinion in a reported case, see, e.g., id. at 611, or
- read from a case that no longer has precedential value, see, e.g., id.
- It also means that the prosecutor may not make arguments that undermine the presumption of innocence. State v. Wilder, 124 N.C. App. 136, 142-43 (1996).
- Arguing that a Result is Mandated By a Prior Case. A lawyer may argue all relevant law to the jury, and this may include reading from prior cases. Caution should be exercised, however, with regard to recitation of the facts of other cases. State v. Wright, 304 N.C. 349 (1981) (“facts of other cases would ordinarily be inappropriate topics for jury argument.” Id. at 355. Additionally, a lawyer may not recite the facts of another tried case together with the result to suggest that a similar result should obtain in the case at hand. Gardner, 316 N.C. at 611; State v. Thomas, 350 N.C. 315, 353-55 (1999) (prosecution’s argument was proper where it was limited to reciting relevant statement of law); State v. Billings, 348 N.C. 169, 185 (1998) (citing Gardner); State v. Burr, 341 N.C. 263, 307 (1995) (same); State v. Simmons, 205 N.C. App. 509, 515-16 (2010) (argument was improper).
- Pretrial Silence. For a discussion of the proper uses at trial of a defendant’s pretrial silence, see my blog post here.
- Comment on the Defendant’s Failure to Plead Guilty. A prosecutor’s reference to a defendant’s failure to plead guilty is a violation of the defendant’s constitutional right to a jury trial. State v. Kemmerlin, 356 N.C. 446, 482 (2002).
- Comment on the Defendant’s Failure to Testify. A defendant has a constitutional right to refuse to testify at trial and exercise of this right may not be used against the defendant. State v. Mitchell, 353 N.C. 309, 326 (2001). As a result any reference to a defendant’s failure to testify violates the defendant’s constitutional rights. Id.; Kemmerlin, 356 N.C. at 481. The rule prohibiting comment on a defendant’s failure to testify applies to both the prosecutor and the defense lawyer. State v. Soloman, 40 N.C. App. 600, 603 (1979). However, a comment on a failure by the defense to put on evidence is not a comment on the defendant’s failure to testify. Also, defense counsel may argue that the jury should not consider against the defendant the defendant’s election not to testify. State v. Banks, 322 N.C. 753, 764 (1988) (error to preclude defense counsel from so arguing).
- Failure To Call a Spouse. A defendant’s failure to call a spouse as a witness may not be used against the defendant. G.S. 8-57(a); State v. Barden, 356 N.C. 316, 380-81 (2002) (prosecutor’s argument was improper).
- Reading the Indictment. Neither lawyer may read the indictment to the jury. G.S. 15A-1221(b).
In my next post on this topic, I’ll pick up with other types of impermissible arguments, including among other things, religious argument and name calling.
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.]
Consider the following excerpts from a penalty phase closing argument in a capital case:
- “[D]on’t look to [the defendant] for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at [the defendant], don’t look for good deeds, because he has done none. Don’t look for good thoughts, because he has none.”
- “[Y]ou can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom [where one of the victims was killed], and it is death, and you can smell the death . . . and you can feel, the loneliness of that railroad platform . . . and we can all know the terror that [the victim] felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets . . . And we can see a relatively young man cut down with so many years to live, and we could re-member his widow, and we certainly can remember looking at his children . . . There are too many family albums. There are too many family portraits . . . that have too many empty spaces.”
- “[D]on’t look to [the defendant] with the hope that he can be rehabilitated, because he can’t be. . . . [H]e is never going to be any different.”
- The case has “all the aggravating circumstances you [could] ever want.”
You might wonder whether such a closing argument is proper, and particularly, whether the prosecutor’s use of the “you can smell the blood” passage improperly invites the jurors to put themselves in the victims’ place. But the above excerpts are from the closing argument for the defendant in Smith v. Spisak, decided today by the Supreme Court. You can read the full transcript of the closing argument here.
Spisak is a case from Ohio. The defendant, Frank Spisak, is a white supremacist who killed three people, and tried to kill two more, in Cleveland over the course of several months. He admitted the killings at trial, proudly describing them as part of a war for the survival of the Aryan race, and indicated that if he were able to escape from jail, he would “continue to inflict the maximum amount of damage on the enemies” as he could. Media accounts indicate that he also wore a Hitler-style mustache and shouted “Heil Hitler!” during trial.
He was convicted and sentenced to death, and eventually filed a habeas petition in federal court, alleging inter alia that his lawyer’s closing argument at the penalty phase was so bad that it violated his Sixth Amendment right to the assistance of counsel. The district court disagreed, but the Sixth Circuit reversed. Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2008). The appellate court said that “trial counsel did very little to offset the negative feelings that his own hostility and disgust for Defendant may have evoked in the jury. Instead . . . counsel further denigrated Defendant and even went so far as to tell the jury that Defendant was undeserving of mitigation.” It found that this breached counsel’s duty of loyalty to Spisak, a breach that was compounded when the lawyer effectively told the jury that either life or death would be appropriate verdicts.
The Supreme Court unanimously reversed. In order for a lawyer’s performance to constitute ineffective assistance of counsel, it must (1) be deficient, and (2) prejudice the defendant, in that there is a reasonable probability that it affected the outcome of the trial. The Court “assume[d]” that the closing argument was deficient, but held that the heinousness of the crimes, Spisak’s own inflammatory testimony, and the lack of any real mitigating evidence beyond the mental illness that counsel did reference at times in the closing argument, a better closing would not have changed the outcome. Justice Stevens concurred, stating that the argument was “thoroughly egregious,” a “catastrophe,” and “shares far more in common with a prosecutor’s closing than with a criminal defense attorney.” But he agreed that “even the most skillful of closing arguments—even one befitting Clarence Darrow—would not have created a reasonable probability of a different outcome in this case.”
For those interested in further reading about the facts of this unusual case, a somewhat tawdry story about the case is here; what purports to be a letter from Spisak about his transsexualism is here.