Improper Closing Arguments During Criminal Trials
posted by Jennifer Collins
There has been an interesting discussion this week in the blogosphere about whether it’s appropriate for a prosecutor to urge the jury during closing argument to “send a message” with its verdict. See, for example, this discussion at the Volokh Conspiracy: http://volokh.com/posts/1164681889.shtml. I worked as a prosecutor in Washington, D.C., where such arguments were clearly impermissible. Being careful not to make a misstep during closing argument weighed very heavily on the minds of the attorneys in my office because the appellate court in DC kept very tight reins on prosecutors. Perhaps the most striking example was that you could not say a defense witness lied during closing argument. You could say the testimony was incredible in light of the other evidence in the case, or inconsistent with the testimony of other witnesses, but we were warned in no uncertain terms not to use the word “lie” in closing argument. In keeping with the prohibition that you could not tell the jurors to send a message, you also could not tell jurors they were the “conscience of the community.” Of course, prosecutors have made some pretty remarkable statements in closing arguments over the years. Some of my personal favorites are (1) the prosecutor who stated about a witness “I believe him from the bottom; I swear I believe him from the bottom” and (2) the one who told the jury he “did not go to law school to put innocent men in the penitentiary.” Comparing a defendant to Charles Manson is not surprisingly no good either. Anyone else have any particularly striking examples?