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6 Ways to Blow Your Closing With an Improper Argument

By William Peacock, Esq. on September 03, 2014 | Last updated on March 21, 2019

There are many ways to mess up a closing statement in a criminal case with an improper argument, and as you might imagine, we've seen plenty of 'em in our coverage of appellate decisions in state and federal appeals courts. Arguments on race, sexual orientation, emotion, or improper credibility arguments all surface repeatedly, though they are easily avoided.

Will they cost you a conviction? Maybe, maybe not. In each of these cases, the defendant was tasked with showing prejudice after the fact -- a task that is easier said than done.

Still, you can avoid having your conviction reviewed on appeal and you increase the chances of a fair trial if you avoid these six improper arguments:

1. Gay = Molester.

In a case we're discussing today on our California Case Law blog, a state appellate court overturned a woman's conviction for molesting a child because the prosecutor had argued that the defendant's sexual orientation was a motive for molesting the young, female victim.

The court, quoting a 1956 case, remarked that "using evidence of a defendant's homosexuality to prove they molested a child of the same sex about as farfetched as using evidence of a defendant's heterosexuality to prove they committed rape."

2. Be a Racist.

Late last year, we covered the tale of long-time prosecutor Charles Garnati, who was facing disciplinary proceedings over his conduct in a 2011 murder trial. The defendant was granted a new trial after Garnati made multiple references to race throughout the trial, including talking about "our white world" with the all-white jury.

The court called this a prejudicial (in the legal and racial sense) and improper "us v. them" or black v. white argument.

3. Hiding Opinions in Visual Aids.

Back in 2012, the Washington Supreme Court threw out a conviction because the prosecutor in the case superimposed "GUILTY, GUILTY, GUILTY" and "DO YOU BELIEVE HIM?" over the defendant's face. The majority of the court noted that the prosecutors couldn't make the statements aloud, as they would be highly prejudicial if spoken.

Bottom line: If can't say it aloud, why would you say it in your visual aids?

4. 'Golden Rule' Arguments.

We've seen this one recently: Counsel for the Detroit-area "Porch Shooter," who was convicted of second-degree murder for killing an unarmed woman on his porch, used this to garner sympathy for his client. It apparently didn't work. And in a First Circuit appellate case from last year, a prosecutor asked jurors in a drug case, "Have you ever wrapped money in dryer sheets?" That conviction was upheld.

Why? Neither of these is an example of an improper "Golden Rule" argument, where the prosecutor asks the fact-finders to put themselves in the shoes of the victim, rather than the defendant.

5. Vouching.

In another First Circuit drug case from this year, a prosecutor "employed his own standing and credibility to buttress the one part of his case upon which the defense focused its attack." In other words, he vouched -- a mistake that is all too common. The First Circuit noted that this was the third time it had addressed vouching in the last three years.

Lesson? "Trust me, bro" isn't a proper closing argument -- rely on your case, not your credibility.

6. Personal Knowledge / Evidence Not Presented.

What's wrong with this statement: "Do you think the state prosecutes people who don't abuse their children?"

It implies that the prosecutor knows more than he's allowed to say, that he has personal knowledge of guilt or of evidence not presented. This wink, nod, "trust us, he's guilty" is similar to vouching, and equally improper.

Have any other examples of improper closing arguments? Tweet us @FindLawLP.

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