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Common Closing Argument Errors By Prosecutors

Closing argument is the last opportunity for each side to speak with the jury interrupted before deliberations. The power of closing argument cannot be emphasized enough as the words said in closing argument can echo in the jury's mind long after deliberations. Think "if the glove doesn't fit, you must acquit." Although lawyers have plenty of room to argue, there are still limitations to what can be argued at this critical stage in the trial. Furthermore, there are certain prohibitions specific to prosecutors. The Florida Supreme Court expects "prosecutors, as representatives of the State, to refrain from inflammatory and abusive argument, maintain their objectivity, and behave in a professional manner." Many prosecutors adhere to this mantra and argue with undue professionalism, there are some who do not. Below is a list of popular closing argument errors:

"I submit to you that it's not reasonable to consider that sworn police officers, doing their job, could come into court and perjure themselves."

Bolstering a witness is improper. Perhaps more fatal to the fairness of a trial, is the argument for the prosecution to suggest that a police officer should be believed simply because he or she is a police officer. This type of argument has long been condemned by the appellate courts.

"The defense theory reminds me of the magic loogie in Seinfeld."

The lessons of grade school apply to the courtroom. The prosecution cannot ridicule the defendant's theory of defense or refer to it in derogatory terms.

"I'm asking you to do your job today, here in this courtroom, and send these folks a message. . . This is our country, this is our nation, it's time to send em - send criminals a message we're not gonna tolerate it anymore. . . "

Prosecutors are prohibited from asking the jury to find the defendant guilty to send a message to the community. These arguments may be seen on popular shows such as Boston Legal, but they are improper in the court of law as it diverts the jury's attention from the record evidence

"The defendant was glaring at the witness."

The prosecution cannot comment on the defendant's demeanor when he is not on the witness stand.

"That's a lie."

The Florida Supreme Court has stated it is "unquestionably improper" for the prosecutor to suggest the defendant has lied.

"I didn't hear from the defendant"

All prosecutors should be aware of the prohibition from commenting on a defendant's right to remain silent. This applies to closing argument as well. The prosecutor is prohibited from making an argument that is "fairly susceptible" of being viewed as a comment on the defendant's failure to testify. Dailey v. State, 594 So. 2d 254, 258 (Fla. 1998).

Although these errors may occur, it is vital for defense counsel to object as these errors can compromise the jury's ability to fairly evaluate the evidence. Without an objection, the appellate court reviews the errors under a fundamental analysis. "In order for an error to be fundamental and justify reversal in the absence of a timely objection, 'the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'" Randolph v. State, 853 So. 2d 1051, 1068 (Fla. 2003). What does this mean? It means the burden is extremely high to obtain a reversal without a proper objection.

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