15. CLOSING ARGUMENT
In a courtroom, both for reasons of your own training, and as a representative of the profession, you should always be a gentlemen or a lady is a person who plays by the rules and conveys a genuine respect and understanding of those rules. A lady or a gentlemen is not a person who sits by, so unsure of his or her duty or desirous of "sucking up to a robe" so that no one cracks a sweat and your client goes down the river just like the judge feels he should. That is not being genteel, that is being corrupt.
So many lawyers, in an effort to appear genteel, never object during closing argument. Too many judges feel that anything can go during closing argument.
If you get a cheater, you object. In objecting you make a record, you preserve your error and you let that jury know that the prosecutor is cheating. If the judge does not stop it, you let that jury know that the judge is cheating. I regret that once in my career I got so mad at a prosecutor for what I considered his ex parte practice with one judge, that I cheated. That is just as bad as improper and should not be done. You must stay within the rules. When you encounter scum or lack of professionalism, do not let it be your teacher.
Seven common errors of prosecutors in closing argument:
1. Commenting on the defendant=s failure to testify. Everyone knows that this cannot be done. But Rehnquist and other non-trial lawyers have gutted the objection by allowing some real close calls. Language like "It is undenied that. . . " or "It is unrebutted that ..." are examples. Object anyway. Make the objection for commenting on the failure of the defendant to testify and attempting to shift the burden. (You should have covered the defendant's not testifying in voir dire if you knew what you were doing).
2. Shifting the burden to the defendant. The prosecutor stating that: "To acquit this defendant you must find that the government witnesses lied or committed perjury", improperly shifts the burden. Remember that the burden is not on the defendant to show that the government's witnesses are liars. The presumption of innocence requires the government to prove, beyond a reasonable doubt, that its witnesses are telling the truth. Any uncertainty must be considered to the benefit of the defendant.
3. Arguing the opinion of the prosecutor. An advocate can submit a position or theory. He or she cannot say. "I think the son of a bitch is guilty".
4. Arguing facts not in evidence or implying that there are other facts, not presented. This is error, sweet and simple. When a prosecutor comments about your objecting simple. When a prosecutor comments about your objecting during the trial or during the argument or states that "We have presented all of the evidence about this man that we are allowed under our laws to present." Object, remove the jury and ask for a proffer. If there is none, move for a mistrial.
5. Inflaming the passions of the jury. "If you acquit this defendant there will not be a safe virgin in this state". Improper.
6. Unfair characterization of the defense or the defendant. Words like lie, bullshit, fabrication or cock and bull story are evidence of this error.
7. Adverse comment on defendant's right to counsel. "If the defendant is really innocent why would he hire this expensive lawyer?" Error.
Always make a firm and definite objection. As soon as you hear language like that indicated above, you stand. If your objection is sustained, move for a cautionary instruction and admonishment to the prosecution. If granted, move for a mistrial. Remember that you have not preserved an error until the judge says "No". Objection . . . sustained and sitting down does nothing.
This last point is not an error but it is poor taste and should be avoided: Never call a witness or anyone in the courtroom by their first name. Many lawyers, the older dumb country ones, feel that you humanize your client by calling him by his first name.. You patronize and insult the jury. If someone else does it, particularly to a minority or female witness or your client, object citing improper familiarity with the witness. If not sustained, be sure to call the witness "boy" next chance you get.