Avoiding Reversible Error in Closing Argument: What Prosecutors Can Learn from 2016

For a prosecutor, there are few things more disappointing than hearing the words “not guilty.” Close competition is leaving the courtroom with a guilty verdict in hand, only to learn some time later that you royally messed things up and the appellate court has overturned the conviction. To err is human, to forgive . . . not the specialty of appellate judges.

Not all blame for reversible error lies with the prosecution, of course. But prosecutors have a vested interest in ensuring their convictions withstand an appeal. As a prosecutor who recently experienced the dejection of a vacated conviction (erroneous jury instruction), I’ve committed myself in 2017 to learn from the mistakes of 2016—both my own and others’. To start, here are 7 ways in which closing argument got prosecutors into trouble in 2016. Examples 2 through 5 can be easy mistakes to make, especially after a high-intensity trial schedule involving little sleep. In all cases but the last, the improper closing argument contributed to reversal of the conviction (in Examples 1 through 4 the improper closing argument was the sole grounds for reversal).

(I don’t know any of the prosecutors who participated in the cited cases, and this is not intended as a criticism of their competence and integrity. I’ve made enough mistakes that I’m in a better position to critique than to criticize.)

  1. Arousing Racial Animosity

Among the most notable instances of improper closing argument last year came in the penalty phase of a capital trial. The Fourth Circuit found that the prosecution suffused the trial of a black defendant with “racially coded references to a degree that made a fair proceeding impossible.” See Bennett v. Stirling, 842 F.3d 319 (4th Cir. 2016). “The most egregious appeals to racial prejudice” came in closing argument, when the prosecutor compared the defendant to “King Kong on a bad day.” (King Kong is a classic of cinema, but many critics regard it as a veiled cautionary tale about interracial romance.) The prosecutor also deployed a “slew of derogatory terms,” labeling the defendant “a ‘caveman,’ a ‘mountain man,’ a ‘monster,’ a ‘big old tiger,’ and ‘[t]he beast of burden.’” These remarks, the court found, were “unmistakably calculated to inflame racial fears and apprehensions on the part of the [all-white] jury.” Taken in context, the prosecutor’s argument “mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution.”

Most prosecutors don’t need this reminder to steer clear of anything that even has the whiff of racial undertones.

  1. Misstating a Central Point of Law

The law is complex, and thus it’s easy for attorneys to misstate unintentionally a point of law or two in closing argument. Errors of this sort are commonly deemed harmless and do not warrant reversal. However, when the prosecution’s error touches upon a point of law central to a disputed issue, it may substantially prejudice the defendant’s right to a fair trial and necessitate a do-over.

That’s what occurred in United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016), which addressed the murder conviction of an Air Force airman, who, while stationed in Germany, was a leader of a gang known as the “Brothers of Struggle.” All initiates to the gang had to endure a ritual beating. In this case the initiate died from blunt force trauma, and Williams, who partook in beating to death the decedent, was charged with second-degree murder. The initiate had consented to the ritual, but consent is not a defense to murder. The victim’s consent, however, was relevant to whether Williams had the requisite state of mind for murder (as opposed to involuntary manslaughter). That is, the victim’s “‘continued, and enthusiastic, statements that he wanted the initiation to continue’ [] suggested that Williams was not conscious of an extreme risk that [the victim] might die or be seriously injured.” The prosecution erroneously argued that the jury could not consider consent at all—not even with regard to Williams’s intent. The appellate court acknowledged that the prosecution’s problematic statement amounted only to “a small portion of closing argument.” But that was all it took to undo a murder conviction.

  1. Vouching for the Credibility of Your Witnesses (And Your Own Integrity)

A prosecutor’s personal opinion of the strength of evidence holds no weight. Therefore, a prosecutor cannot make personal assurances of a witness’s veracity (e.g., “I believe the government’s witnesses are telling the truth.”). That mistake proved costly in United States v. Smith, 814 F.3d 268 (5th Cir. 2016). The prosecutor asserted his personal opinion of witness veracity on several occasions. The prosecutor then compounded the error by improperly vouching for the government’s own integrity (“What incentive is there for us to come in and try a person if he’s not the person that did the offense?”).

  1. Misdescribing the Presumption of Innocence

“The presumption of innocence that you came into this trial with no longer exists at this point,” argued the prosecutor in State v. Lawrence, _P.3d_, 2016 WL 7441872 (Mont. 2016). The prosecutor apparently was intending to convey that the evidence presented by the state removed any reasonable doubt that the defendant had committed the crime. However, what the prosecutor actually said is legally unsound. As one Colorado court explained it:

The presumption remains in place unless and until a jury returns a guilty verdict, terminating only if the jury concludes that the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the charge against him or her . . . .

Thus, as a jury evaluates the evidence against a defendant, it must continue to presume him or her innocent until it concludes that the evidence proves the defendant guilty beyond a reasonable doubt.

The Lawrence court concluded that the prosecutor’s comments had the “potential effect of removing the presumption of innocence from the defendant.”

  1. Shifting the Burden of Proof

In State v. Moodie, an unpublished case from the Minnesota Court of Appeals (2016WL596275), police found the defendant facedown and intoxicated in the woods near a vacant car that was parked in an intersection. On trial for DUI, the defendant asserted that she hadn’t had a drink until after the car broke down and her friend went to get help. It was then that she supposedly uncorked the booze. Police didn’t find an empty bottle and so the prosecutor argued: “You’ve got no evidence of a bottle. Certainly, if she’s presenting to you now that hey, I drove and then I drank, there is no evidence of that. . . . There is no reasonable doubt that this defendant did not commit this offense. To put it another way, this defendant committed the offense. It’s proof beyond a reasonable doubt. There is no other proof.”

It’s proper for a prosecutor to comment on the lack of evidence supporting a defense theory, but improper to remark on the defendant’s failure to present evidence. (It can be a fine distinction.) The court held that that the “the prosecutor’s comments imply that Moodie had some burden to produce evidence to prove her version of events, particularly the last challenged comment that ‘[t]here is no other proof.’ [T]he prosecutor plainly erred in improperly shifting the burden of proof onto the defendant.”

  1. Trying Something Novel

Part of the fun of closing argument is finding fresh and engaging ways to present your case to the jury. And in that regard prosecutors have wide latitude. As one court put it, “It is well-established that a prosecutor may use wit, satire, invective and imaginative illustration in arguing the State’s case and may present an analysis of the evidence in summation with vigor and zeal.” If, in plumbing your creative reserves you devise a technique you’ve never seen another trial lawyer use, first read People v. Mpulamaska, 48 N.E.3d 853 (Ill. App. Ct. 2016). The prosecutor in a sex-assault trial took the witness chair during closing to comment on the victim’s courage and credibility. The court could only locate one other instance where a prosecutor had taken the witness seat during closing—a 9th Circuit case where the prosecutor delivered a soliloquy in the voice of the deceased victim. Neither court looked favorably upon the theatrics.

  1. Acting Unprofessionally

State v. Robinson, 134 A.3d 828 (Me. 2016), is not about a prosecutor’s misconduct during his own closing, but during defense counsel’s. Testimony from a neutral observer at a post-trial hearing indicated that the prosecutor had attempted to communicate with the jury during the defense counsel’s closing argument. How? In response to defense counsel’s rhetorical questions, the prosecutor repeatedly mouthed to the jury, “He did it.” (The prosecutor denied the allegation.) The prosecutor also closed his eyes, put his head back, and feigned sleep during defense counsel’s closing argument. The prosecutor admitted he did this to annoy defense counsel. The prosecutor’s conduct didn’t undermine the conviction, but it may have undermined his reputation within the bar.