CHAPTER 33

CLOSING ARGUMENTS

§ 33.01 In General

§ 33.02 Timing and Order

§ 33.03 Content of Closing

§ 33.04 Impermissible Tactics

§ 33.05 Retaliatory Arguments

§ 33.06 Duty To Object

§ 33.01

In General

By rule both sides have a right to make a closing argument.{1} The defendant's right to a closing is also a due process entitlement, inasmuch as "no aspect of [trial advocacy] is more important than the opportunity finally to marshall the evidence for each side before submission of the case for judgment."{2} The right applies fully in bench trials,{3} as well as in juvenile delinquency merits hearings.{4}

§ 33.02

Timing and Order

Closings begin after both sides have rested, and after the judge has ruled on any requested instructions,{5} generally at a charge conference where the judge lets counsel know the substance of his or her proposed jury instructions. The traditional order of argument has the prosecution opening, the defense responding, and the prosecution arguing last in rebuttal. The prosecution has the first and last words because it bears the burden of proof. In cases where the real issue is raised in an affirmative defense, however, such as insanity or necessity, the same rationale gives the defense the right of rebuttal. V.R.Cr.P. 29.1 accordingly commits the order of closing arguments to "the sound discretion of the trial judge[,]" who "may afford the party which bears the burden of proof with regard to any issue the opportunity for rebuttal on such issue."

§ 33.03

Content of Closing

Both sides are supposed to confine their closing arguments to the evidence and reasonable inferences from the evidence, and should avoid prejudicing the jury.{6}

Arguing about the absence of evidence, or the state's failure to produce it, is also fair game because a reasonable doubt can be founded on a lack of evidence.{7} Such arguments can be misleading, however, if they imply without sufficient foundation that the prosecutor has withheld evidence. For example, in State v. Emerson{8} a defense argument that the prosecution had failed to show the results of a fingerprint analysis was improper because no evidence indicated that the prints were readable.{9} State v. Roberts{10} is a less plausible holding of the same sort. In Roberts a witness's prior testimony was read to the jury by the judge's law clerk; defense counsel was precluded from arguing that the jury "should not ascribe the demeanor of the law clerk . . . to [the missing witness] and thereby give the testimony merit that it otherwise lacked."{11} Counsel may comment only on the evidence, the Vermont Supreme Court reasoned, and because the witness did not testify in person "his physical demeanor did not constitute relevant, probative evidence upon which defense counsel could remark or urge the jury to make speculative inferences."{12}

§ 33.04

Impermissible Tactics

The Vermont Supreme Court, although it rarely reverses a conviction on the basis of an improper prosecution argument, has disapproved the following tactics:

a. Comments on Defendant's Failure to Testify

Comments, overt or veiled, on the defendant's failure to testify, barred on fifth amendment grounds,{13} are discussed in § 30.06, supra.

b. Expressions of Personal Opinions

A prosecutor may not give his or her opinion about "the guilt of the accused, the merits of the evidence, [or] the credibility of witnesses,"{14} including expert witnesses.{15} It is improper to argue, for example, "I think . . . that the story which Mrs. Ayers has told you today is the truth."{16} The same considerations rule out arguments based on the prosecutor's personal experience, for example, that the sound of gunfire must have had a sobering effect on witnesses inasmuch as "I would sure get sobered up quick."{17}

A long line of Vermont cases condemns these personal opinion arguments,{18} in part because of the risk that "the jury will give special weight to this opinion because of the prestige of the prosecutor and the fact-finding facilities available to the office[,]" and in part because "statements of opinion suggest that the jury should treat the prosecutor's argument as evidence with the new evidence being the opinion of the prosecutor."{19}

Not every first-person argument is improper, however, and an argument that "I'm confident, when you take all these factors into consideration . . . that you will feel confident returning a verdict of guilty[,]" did not inject "the prosecutor's own opinion [about the defendant's guilt], but rather what she thought the jury could believe."{20}

c. Comments Raising a "Bad Person" Inference

A prosecutor may not argue that the defendant is probably guilty because he was guilty of similar crimes in the past.{21} In State v. Moran the prosecutor, pointing to defendant's prior convictions, argued, "He says believe me, I'm not the type of person who would do such a thing. . . ."{22} The Vermont court condemned the tactic in harsh language and reversed on that basis even though the defense had failed to brief the issue.{23}

d. Insulting or Inflammatory Characterizations of the Defendant

In State v. Francis{24} the Vermont Supreme Court disapproved an argument that the defendant was a "liar," not because it was not supported by the evidence, but because in context it implied the prosecutor's personal belief.{25}

e. Arguments Impugning the Defense and Defense Counsel

The court disapproved another argument in Francis, that the defense summation was a "smoke screen," because it mischaracterized proper defense arguments.{26} Arguments in another case that defense counsel "was not missing a trick" and "[h]ad [the victim] coming and going and tied up right in circles" were also objectionable, although not "manifestly and egregiously improper" and therefore not plain error.{27} In a third case a prosecutor's argument that defense counsel was trying to sell the jury "a bag of goods" and that the jury "should be insulted by that red herring" and "outraged" were also not squarely objected to (or not for the right reasons) and not plain error.{28}

f. Implication of Witness Tampering

The defendant and a defense witness "spent all of the recesses and all of the breaks in the trial" together, and the jury could "draw your own conclusions . . . from that." This argument, the Vermont Supreme Court wrote in State v. Gates,{29} raised a clear suggestion of witness tampering with "not a shred of evidence" to support it.

g. Defendant's Ability To Tailor Testimony

The defendant, unlike other witnesses, "has a chance to hear all the evidence, fill in gaps, modify testimony he desires to, to fit any contingency. . . ." The court condemned this "innuendo" in State v. Hemingway,{30} because "[t]here was no testimony that the defendant and his friend had collaborated, or that the defendant purposely used the timing of his testimony to ensure his story coincided with that of his friend."{31}

§ 33.05

Retaliatory Arguments

The fact that defense counsel has made improper remarks in closing does not automatically give the prosecutor a license to respond in kind.{32} Even so, otherwise improper or arguably improper rebuttals have been approved as fair retaliation for defense arguments.{33}

§ 33.06

Duty To Object

As with any other prosecutorial misconduct, defense counsel has a duty to respond to a prejudicial closing argument with an immediate objection. The polite, nondisruptive tactic of saving objections until the prosecutor finishes his or her argument is simply not good enough. "Generally, the argument must be interrupted at the moment the claimed prejudicial argument is made."{34}

When an objection is made late, or made for the wrong reasons, or not made at all, the appellate court will review only for "plain error."{35} To establish plain error the argument must have been "manifestly and egregiously improper";{36} it must have "probed the outer boundaries of impermissible conduct."{37} The court occasionally finds something this bad,{38} but not often.

If the judge sees nothing wrong with the argument there is nothing more to do; the objection has been made and denied and the claim of error is preserved. If the objection is sustained, counsel should ask for appropriate relief: a cautionary instruction striking the offending remark and instructing the jury to disregard it, and/or for a mistrial.{39} When an instruction is called for, the judge should give it at once and not defer it until his final instructions to the jury.{40}

1. V.R.Cr.P. 29.1.

2. Herring v. New York, 442 U.S. 853, 864 (1975).

3. Herring v. New York, 442 U.S. 853, 864 (1975).

4. In re A.C., 134 Vt. 284 (1976).

5. V.R.Cr.P. 30.

6. State v. Siergiey, 155 Vt. 78, 84 (1990) (prosecutor incorrectly characterized witness's testimony but error was not prejudicial); State v. Emerson, 149 Vt. 171, 177 (1988); State v. Hemingway, 148 Vt. 90, 91 (1987); State v. Riva, 145 Vt. 15, 20 (1984); State v. Blakeney, 137 Vt. 495, 504-05 (1979) (counsel objected to prosecutor's misstatement of defense argument, and court instructed jury to ignore it).

7. State v. Finney, No. 90-367, slip op. 2 (Vt. Dec. 13, 1991) (mem.); State v. Giroux, 151 Vt. 361, 365 (1989). But see State v. Benneig, 146 Vt. 391, 396-98 (1985) (judge may prevent defense counsel from arguing on basis of witness's privileged refusal to testify).

8. 149 Vt. 171 (1988).

9. State v. Emerson, 149 Vt. 171, 176-77 (1988).

10. 154 Vt. 59 (1990).

11. State v. Roberts, 154 Vt. 59, 72 (1990).

12. State v. Roberts, 154 Vt. 59, 72-73 (1990). See also State v. Finney, No. 90-367, slip op. 2 (Vt. Dec. 13, 1991) (mem.) (judge excluded argument in rape case based on lack of victim's injuries; argument may not have been improper but judge properly restricted manner in which defense presented argument).

13. Griffin v. California, 380 U.S. 609 (1965); State v. Hamlin, 146 Vt. 97, 102 (1985).

14. State v. Messier, 146 Vt. 145, 160 (1985).

15. State v. Trombley, 148 Vt. 293, 300-01 (1987) ("I believe Dr. King was probably conned"; improper but not requiring reversal).

16. State v. Ayers, 148 Vt. 421, 425 (1987).

17. State v. Brown, 147 Vt. 324, 328-29 (1986).

18. State v. Ayers, 148 Vt. 421, 425 (1987) (collecting cases). See also State v. Francis, 151 Vt. 296, 298-99 (1989).

19. State v. Ayers, 148 Vt. 421, 425 (1989). The court did not signal disapproval of these precedents by acknowledging that "it is senseless to perpetrate a notion that prosecutors do not or should have any opinion about the guilt or innocence of those they prosecute, and a jury will likely infer that a prosecutor believes criminal defendant to be guilty even if the prosecutor never says so." State v. Francis, 151 Vt. 296, 300 (1989).

20. State v. Ryea, 153 Vt. 451, 455-56 (1990). See also State v. Messier, 146 Vt. 145, 160 (1985) (some personal opinion statements "did not reflect prosecutor's own belief or opinion, but what he thought the jury would believe").

21. The rule against propensity evidence and arguments is discussed in § 31.04.

22. 141 Vt. 10, 19 (1982).

23. State v. Moran, 141 Vt. 10, 20 (1982).

24. 151 Vt. 296 (1989).

25. State v. Francis, 151 Vt. 296, 300-01 (1989).

26. State v. Francis, 151 Vt. 296, 300 (1989).

27. State v. Hughes, No. 90-294, slip op. 4-5 (Vt. May 8, 1992).

28. State v. Brown, 153 Vt. 263, 274-75 (1989).

29. 141 Vt. 562, 565-68 (1982).

30. 148 Vt. 90 (1987).

31. State v. Hemingway, 148 Vt. 90, 92 (1987).

32. United States v. Young, 470 U.S. 1 (1985); State v. Ayers, 148 Vt. 421, 427 (1987).

33. State v. Kennison, 149 Vt. 643, 649-50, cert. denied, 486 U.S. 1011 (1988); State v. Emerson, 149 Vt. 171, 177 (1988); State v. Kasper, 137 Vt. 184, 208-10 (1979).

34. State v. Curtis, 145 Vt. 552, 553 (1985).

35. See State v. Brown, 153 Vt. 263, 275 (1989) (objection for wrong reason); State v. Curtis, 145 Vt. 552, 553 (1985) (late objection).

36. State v. Hughes, No. 90-294, slip op. 4 (Vt. May 8, 1992).

37. State v. Brown, 153 Vt. 263, 274 (1989) (quoting State v. Bubar, 146 Vt. 398, 403 (1985)).

38. State v. Ayers, 148 Vt. 421, 426 (1987); State v. Moran, 141 Vt. 10, 20 (1982). The plain error holding in Ayers was motivated in part by the fact that the defendant was unrepresented. Ayers at 426.

39. In State v. Curtis, 145 Vt. 552 (1985), defense counsel asked for a mistrial, but only "if the verdict is not favorable. . . ." The court wrote that "[a] defendant may not gamble on a favorable verdict before urging prejudicial conduct as grounds for a mistrial." Id. at 553.

40. State v. Hemingway, 148 Vt. 90, 92 (1987).