While opening statements are supposed to be limited to explaining what the evidence will show, closing is the time to argue, be an advocate, convince. How far can you go? Oklahoma cases present some very interesting arguments that have tested the boundaries. They also illustrate the wisdom of having arguments recorded, making timely objections, and asking the court to admonish the jury regarding improper argument.
As summarized by the Oklahoma Supreme Court in Covel v. Rodriguez, 2012 OK 5, 272 P.3d 705, “Attorneys have wide latitude in opening and closing statements, subject to the trial court’s control, and limitation of the scope of the arguments is within the trial court’s discretion.” Counsel are allowed “a wide range of discussion and illustration” in closing argument. Hamilton v. State, 79 Okl.Cr. 124, 152 P.2d 291, 296 (1944). “Persuasive argument based upon the evidence does not constitute reversible error.” Carter v. State, 1994 OK CR 49, 879 P.2d 1234, 1253. Attorneys have a “right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it.” Frederick v. State, 2001 OK CR 34, 37 P.3d 908, 946.
An admonition to the jury to disregard an improper argument cures any prejudice that might be created since it cannot be presumed as a matter of law that the jury will fail to heed the admonition given by the court. Middlebrook v. Imler, Tenny & Kugler M.D.’s, Inc., 1985 OK 66, 713 P.2d 572, 583. To warrant reversal it must appear that substantial prejudice resulted and the jury was influenced to the material detriment of the other party. Oklahoma Turnpike Authority v. Daniel, 1965 OK 7, 398 P.2d 515, 518; Willis v. Fried, 1981 OK 60, 629 P.2d 1255, 1257. It is well established that “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” Ryder v. State, 2004 OK CR 2, 83 P.3d 856, 875, quoting United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 11 (1985); see also, Black v. State, 2001 OK CR 5, 21 P.3d 1047,1078. Following (and to be continued in our next issue) are some fairly recent examples of the many things that can and cannot be said.
Comments About Witnesses vs. “Vouching: Rational comments about the veracity of witnesses or weaknesses in their testimony are certainly permissible. For example, in Duckett v. State, 1995 OK CR 61, 919 P.2d 7, 19, the court condoned the prosecutor’s characterization of the defense expert as a “clinician” rather than a “scholar” and his questioning the thoroughness and impartiality of the expert’s evaluation. They might even call someone a cold-blooded killer if the facts support it. Stouffer v. State, 2006 OK CR 46, 147 P.3d at 276. However, name-calling such as characterizing an expert’s testimony as “mumbo jumbo” is improper. Jackson v. State, 1998 OK CR 39, 964 P.2d 875, 895. Calling a defendant a liar, “the worst of the worst” and comparing him to “a cornered rat” were “borderline” arguments not to be condoned. Childress v. State, 2000 OK CR 10, 1 P.3d 1006, 1013-1014.
Misstating testimony unintentionally, e.g. if prefaced by the phrase, “the best I remember”, may not be prejudicial. Wood v. State, 1998 OK CR 19, 959 P.2d 1, 14.
Obviously, prosecutors cannot violate any of a defendant’s privileges or deny the presumption of innocence. Although they cannot comment on a defendant’s decision not to testify or the right to remain silent, they can comment on lack of remorse if there is evidence of it. See, Young v. State, 2000 OK CR 17, 12 P.3d 20, 44. In civil proceedings they may comment about a party’s invocation of the Fifth Amendment. In the Matter of C.C., 1995 OK CIV APP 127, 907 P.2d 241, 244. Prosecutors may not comment on a defendant’s courtroom demeanor unless the defendant testifies. Mehdipour v. State, 1998 OK CR 23, 956 P.2d 911, 916(f.n. 11). For example, it is improper to comment on the defendant’s carrying or reading the Bible as a way of impeaching his credibility. Young v. State, 2008 OK CR 25, 191 P.3d 601, 611.
It is impermissible to “vouch” for a witness by giving a personal opinion regarding the witness’s reliability. See, e.g. Lerma v. Wal–Mart Stores, Inc., 2006 OK 84, 148 P.3d 880, 885; Nickell v. State, 1994 OK CR 73, 885 P.2d 670, 673 (“Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness’ credibility, either through explicit personal assurances of the witness’ veracity or by implicitly indicating that information not presented to the jury supports the witness’ testimony.”) In Mathis v. State, 2012 OK CR 1, 271 P.3d 67, 76-77, the prosecutor’s references to a veteran police officer and the argument that officers don’t make things up was held not to be impermissible vouching since the court decided it did not suggest it was the prosecutor’s personal belief.
Comments About the Opposing Party’s Case: Attorneys may comment on failure to call a witness or present certain evidence. Pickens v. State, 2001 OK CR 3, 19 P.3d 866, 880. While attorneys can make fair comments based on the evidence, it is not permissible to invite jurors to share the attorney’s personal opinions and decide a case based on emotion. For example, a prosecutor’s personal opinion about guilt impinges on a criminal defendant’s right to fair trial. See, Cleary v. State, 1997 OK CR 35, 942 P.2d 736, 752. In Pryor v. State, 722-723, the court explained: “It is a rare case in the jurisprudence of this Court that a prosecutor’s misconduct during closing argument is found to be so egregiously detrimental to a defendant’s right to a fair trial as to require reversal. This is such a case. … [B]y expressing his own anger and sarcastically ridiculing the defense team as having turned the courtroom into a ‘bizarro world’ where ‘nothing makes sense’ and the ‘rules of right and wrong’ and ‘fairness’ ‘don’t apply,’ counsel was injecting his own beliefs and emotions into the proceeding and inviting jurors to do likewise. This belittling of the defense and blatant appeal to emotions exceeds the bounds of fair comment on the evidence and strays into the prohibited realm of argument intended to arouse the passions and prejudices of the jury. This was improper argument.”
Advocates cannot say or imply their opponent is lying. See, DeRosa v. State, 2004 OK CR 19, 89 P.3d 1124, 1144; McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, 1220–21; Stout v. State, 1984 OK CR 94, 693 P.2d 617, 627. They should not cast aspersions on opposing counsel or ridicule them. Hanson v. State, 2003 OK CR 12, 72 P.3d 40, 49. In a civil case, the plaintiff’s attorney accused defense witnesses of perjury and the defendant of hiding evidence and threatening witnesses, but it did not warrant a mistrial because the trial court quickly admonished the jury to disregard the accusations. Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, 933 P.2d 272, 278.
Argument may be heated but stay within bounds. In Fields v. Volkswagen of America, Inc., 1976 OK 106, 555 P.2d 48, 61, the court explained, “This was a hotly contested case. We can expect that in the heated contest of a lawsuit the zeal of counsel may lead to making of ‘too violent deductions which are neither fully borne out by the testimony nor wholly necessary to legitimate discussion of the issues.’ Although not condoning arguments or conduct which may transgress professional ethics in an effort to play upon sympathy of a jury or induce a feeling of prejudice against one party, the court recognized that different counsel utilize varying techniques.”
Comments Regarding Commutation or Parole: “Comments about commutation [and possibilities of parole] are prohibited as they inject speculation into sentencing, lead to death sentences due to juror fear of defendants’ release, and undermine the jury’s sense of responsibility for its sentencing decision.” Johnson v. State, 2004 OK CR 25, 95 P.3d 1099, 1102.
Demonstrative Evidence: The use of demonstrative evidence or visual aids in closing argument is commonly allowed. Oklahoma cases are back in the blackboard and chart era. See, Cartwright v. Atlas Chemical Industries, Inc., 1978 OK CIV APP 23, 593 P.2d 104, 120 (court has discretion to allow use of blackboard, whether figures were applied prior to or during argument); Shuck v. Cook, 1972 OK 25, 494 P.2d 306, 312 (discretion of court to admit charts or to allow use in argument).
Demonstrations: An “inflammatory” demonstration by a prosecutor who pointed a finger at a juror’s head to demonstrate how the defendant held a gun to the victim’s head was not to be condoned, but was not so egregious as to warrant reversal. Jones v. State, 2006 OK CR 5, 128 P.3d 521, 544-545. Non-theatrical demonstrations based on the evidence are permitted. Gilbert v. State, 1997 OK CR 71, 951 P.2d 98, 121.
Explaining Instructions: Attorneys may explain instructions as long as they are accurate in doing so and do not expand upon them. “Where counsel believes that instructions are inadequate, the proper course is to request additional instruction by the court and not for counsel to undertake such additional instruction by way of argument.”
Lawson v. National Steel Erectors Corp., 2000 OK CIV APP 69, 8 P.3d 171, 177.
To be continued
Our next issue will deal with the “golden rule” argument, liability insurance, the “per diem” argument, “sending a message”, mentioning taxes, using pleadings or confessions, the necessity of making objections, considerations of professional ethics and miscellaneous topics addressed by the appellate courts. Stay tuned!
–Lynn Brusin Mares