It’s like Fight Club: the first rule of talking about sentencing at trial is don’t talk about sentencing at trial. Continue reading
Tag Archives: jury argument
Talking about Sentencing at Trial
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.]