Arguments of Counsel

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Basics

State v. McCausland, 124 Ohio St. 3d 8, 2009-Ohio-5933 – Syllabus: “A criminal defendant waives the Sixth Amendment right to present a closing argument when he or she neither requests a closing argument nor objects to its omission.” OMVI was tried to the bench. There was a pause after the officer’s testimony, then the judge began discussion of the evidence without asking the parties if they wished to argue. Compare Herring v. New York (1975), 422 U.S. 853.
 
Yarborough v. Gentry (2003), 124 S.Ct. 1, 7 -- Habeas claim of ineffective assistance of counsel sunk by AEDPA standard: "To be sure, Gentry's lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit's conclusion - not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable - gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials."
 
State v. Jack, 156 Ohio App. 3d 260, 2004-Ohio-775 -- Trial judge indicated that he was not interested in hearing closing arguments in a case tried to the bench.  Reversed despite lack of a specific request for argument. Also see Columbus v. Woodrick (1976), 48 Ohio App. 2d 274; State v. Hoover (May 11, 1992), Stark App. No. CA-8761. Compare State v. Newton (June 27, 1997), Lake App. No. 96-L-058; State v. Yoder (Feb. 5, 1986), Wayne App. No. 2099.
 
State v. Garrard, 170 Ohio App. 3d 487, 2007-Ohio-1244 -- In the court's view the failure to afford an opportunity for closing argument in a bench trial is structural error, but is subject to plain error review. The court concludes reversal is not required because there was no manifest injustice.
 
Columbus v. Stennett (1980), 70 Ohio App. 2d 123, 126 -- Total denial of opportunity for final summation denies defendant the right to assistance of counsel and due process of law. Also see Herring v. New York (1975), 422 U.S. 853; Columbus v. Woodrick (1976), 48 Ohio App. 2d 274.
 
State v. Harrison (1993), 88 Ohio App. 3d 287 -- While the total denial of the opportunity to make a closing argument in a nonjury trial deprives the defendant of his basic rights to make a defense and to have effective assistance of counsel, any error was harmless where the defendant disappeared for eleven years after the state rested and counsel did not protest when the court proceeded to enter a guilty finding.
 
State v. Smith (1992), 84 Ohio App. 3d 647, 662 -- Opening statements are not evidence. Claims in opening statement that the defendant was a good, perfectly normal person interested in helping children did not open the door to attacks on his character during the state's case in chief.
 
State v. Neal (January 23, 1996), Franklin Co. App. No. 95APA05-542, unreported (1996 Opinions 177, 200) -- Claims concerning expected evidence which was not introduced, made during opening statements, generally will not lead to reversal unless they were made in bad faith and are shown to be prejudicial.
 
Jackson v. Howell (1993), 86 Ohio App. 3d 497 -- If the name of a potential witness does not appear on any witness list, Crim. R. 16 does not bar comment on an opponent's failure to call that person.

Improper Argument by Prosecutors in General

Berger v. United States (1935), 295 U.S. 78, 88 -- The prosecutor is the servant of the law whose interest in a prosecution is not merely to emerge victorious, but to see that justice is done. He may strike fair blows, but not foul ones. He must avoid insinuations and assertions calculated to mislead the jury.
 
State v. Lester (1998), 126 Ohio App. 3d 1, 7-8 -- "'The test regarding prosecutorial misconduct in closing argument is whether the remarks are improper and, if so, whether they prejudicially affected the substantive rights of the accused.' State v. Moore (1998), 81 Ohio St. 3d 22, 33...following State v. Smith (1984), 14 Ohio St. 3d 14...The proper standard in showing prejudice is that appellant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Loza (1994), 71 Ohio St. 3d 61, 83...Prosecutors are given wide latitude in closing argument. State v. Davis (1996), 76 Ohio St. 3d 107, 119...The closing argument must be viewed in its entirety to determine if appellant was prejudiced. State v. Ballew, 76 Ohio St. 3d at 255..."
 
State v. Wade (1978), 53 Ohio St. 2d 182 -- Paragraph one of the syllabus: "A claim of error in a criminal case cannot be based upon the improper remarks of counsel during his argument at trial, which were not objected to, unless such remarks serve to deny the defendant a fair trial."
 
State v. Henry (1983), 4 Ohio St. 3d 44 -- Paragraph four of the syllabus: "A defendant is deprived of a fair trial where the prosecutor, during closing argument, urges the jury to disregard the 'purpose to kill' element of aggravated murder and to supply the mens rea requirement by reliance on the defendant's admissions to after-the-fact knowledge of a robbery, and the court fails to correct such error."

Improper Argument by Prosecutors - Personal Belief

State v. Smith (1984), 14 Ohio St. 3d 13, 14 -- "It is improper for an attorney to express his personal belief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer (1931), 124 Ohio St. 1; DR 7-106(C)(4) of the Code of Professional Responsibility. Moreover, the code provides that an attorney is not to allude to matters which will not be supported by admissible evidence, DR 7-106(C)(1), and '*** [a] lawyer should not make unfair or derogatory references to opposing counsel. ***.' EC 7-37." Found to be reversible error for the prosecutor to refer to defense evidence as "lies, garbage, and a smoke screen," and to suggest counsel had suborned perjury with no evidence to substantiate these allegations. Compare State v. Beuke (1988), 38 Ohio St. 3d 29, 32. Also see State v. Cox (1975), 42 Ohio St. 2d 200, 207 (misconduct for assistant prosecutor to throw his badge across the room during rebuttal portion of argument).
 
State v. Coffman (1998), 130 Ohio App. 3d 467 -- Assertion that prosecutor took an oath to fairly enforce the law and thus has an obligation to make sure innocent people don't go to jail, and similar claim that he interviews witnesses to assure that objective, were improper expressions of personal belief. Coupled with use of a witness to vouch for the credibility of the victim, reversal is required.
 
State v. Van Meter (1998), 130 Ohio App. 3d 692, 601 -- Reversal where prosecutor said he had no doubt jurors would concur with what the grand jury already found in returning an indictment, plus additional expressions of personal belief.
 
State v. Clemmons (1998), 82 Ohio St. 3d 438, 452 -- "Referring to the defendant as a 'liar' was improper, in that it conveyed to the jury the prosecutor's personal belief."
 
State v. Carpenter (1996), 116 Ohio App. 3d 613 -- Prosecutor unfairly attacked the credibility of the defendant by calling her a liar, improperly vouched for the credibility of the state's witnesses, misstated the evidence and expressed belief in the guilt of the accused. Conviction reversed as defense counsel's failure to object meant he rendered ineffective assistance.
 
State v. LaFreniere (1993), 85 Ohio App. 3d 840, 853-854 -- Prosecutor's expression of personal opinion concerning the credibility of witnesses in closing argument provides basis for plain error reversal. The trial court is under an obligation to intervene sua sponte when counsel abuses his privilege during argument.

Improper Argument by Prosecutors - Postarrest Silence

State v. Sargent, 169 Ohio App. 3d 679, 2006-Ohio-6823 -- In closing the prosecutor asked why the defendant had fled when approached by the police instead of taking the opportunity to speak with them and possibly clear himself. Reversed because this was an improper comment on pre-arrest silence, citing State v. Leach, 102 Ohio St. 3d 135, 2004-Ohio-2147. It was also reversible error to make an argument implying it was defense counsel's burden to prove the defendant's innocence.
 
State v. Hill (2000), 136 Ohio App. 3d 638 -- During questioning the defendant told a detective "You do what the fuck you have to, I'm not saying anything." This was tantamount to a Doyle violation. It was plain error to permit the prosecutor to argue or present evidence concerning matters following the assertion of the right to remain silent. See State v. Hill (2001), 92 Ohio St. 3d 191 for manner in which plain error analysis is to be undertaken on remand.
 
State v. Saunders (1994), 98 Ohio App. 3d 355 -- Comment that the defendant did not tell the police she acted in self-defense found to be a Fifth Amendment violation. See Doyle v. Ohio (1976), 426 U.S. 610. Since was first mentioned in closing argument, do not reach issue whether or not defendant had been advised of Miranda rights before elected to remain silent. See Fletcher v. Weir (1982), 455 U.S. 603. At 359-360 -- "When a defendant's postarrest silence is raised for the first time in the prosecutor's closing argument, it is not being raised for impeachment purposes and the defendant is further prejudiced in that he or she is afforded no opportunity to call rebuttal witnesses."

Improper Argument by Prosecutors - Denigration of Defense Counsel

State v. Roberts (2001), 139 Ohio App. 3d 757, 768-769 -- It is improper to argue ninety percent of what defense counsel said was a "purely made up story he is trying to get you to believe fits the facts of his case."
 
State v. Sanders (2001), 92 Ohio St. 3d 245, 270 -- It is improper for the prosecutor to accuse defense counsel of lying. Because there was a "strong curative instruction," the defendant was not denied a fair trial.
 
State v. Smith (1998), 130 Ohio App. 3d 360, 367-369 -- Prosecutor began an attack on defense counsel by suggesting his skills were such he could make chicken salad out of chicken droppings. Reversed, even though an apology was forced by the court upon objection.
 
State v. Getsy (1998), 84 Ohio St. 3d 180, 194 -- It was improper for the prosecutor to argue that when "...you have no defense you attack the police, you attack the prosecutor, you attack everybody...you want to deflect, you want to look for something that doesn't exist, you want smoke that can't be seen."
 
State v. Braxton (1995), 102 Ohio App. 3d 28, 40-43 -- After exposition of controlling authorities, court concludes defendant would have been found guilty notwithstanding improprieties in closing argument by the prosecutor. Claim that the defense was setting up and hiding behind a smoke screen was an improper intimation defense counsel had suborned perjury.
 
State v. Moore (1994), 97 Ohio App. 3d 137, 143-145 -- (1) Once the court had determined not to give the "troublemaker" instruction set forth in 4 OJI, it was improper for the prosecutor to make such an argument. However, the error was not prejudicial since the facts as developed at trial would have warranted the instruction. (2) It was improper for the prosecutor in closing argument to claim that accident defense had been cooked up when the defendant "gets together with his lawyer, they dust off the law books, he says, hey, wait a minute, there's a problem with that self-defense."
 
State v. Banks (1986), 31 Ohio App. 3d 57 -- It is reversible error for a prosecutor to imply during closing argument that defense counsel does not believe in his own case, but that the prosecutor believes in hers. See Code of Professional Responsibility, DR 7-106(C).

Improper Argument by Prosecutors - Inflammatory Appeals to the Jury

State v. Willard (2001), 144 Ohio App. 3d 767 -- Reversal where prosecutor: (1) argued without any basis that those trained to investigate sexual abuse believed the complainant, (2) pointed to the defendant and told the jury this is what a man who rapes his daughter looks like, (3) belittled the defendant for permitting his attorney to cross-examine his daughter, and (4) misstated the testimony of the alleged victim's physician. Not all of the misconduct had been objected to.
 
State v. Draughn (1992), 76 Ohio App. 3d 664, 670-675 -- Mistrial was required where the prosecutor in a drug case included in his argument an appeal to the jury to convict the defendant in order to aid the police in taking back their neighborhoods from drug dealers. A mistrial motion should be denied only when the court is satisfied that a curative instruction may avoid a miscarriage of justice. Opinion includes lengthy discussion of what may or may not be argued by prosecutors. Opinion suggests courts have gone too far on occasion in tolerating prosecutorial misconduct in closing argument. Flagrant misconduct calls for a reprimand in the presence of the jury and notification of disciplinary counsel.
 
State v. Chandler (1984), 19 Ohio App. 3d 109, 112 -- Error for prosecutor to refer to the defendant as a maggot, as that word conveys no meaningful information. The use of a generalized epithet only serves to subvert the jury system.
 
State v. Sampson (1982), 4 Ohio App. 3d 287, 291 -- "We find it was error for the prosecutor to state to the members of the jury that they were the only members (of the public) who could punish the individual for his criminal action(,) and any implication that was given that the jury was an extension of the law enforcement community. The jury's function does not include punishment, and the jury should not stray from the consideration of only the evidence before them."
 
State v. Nobles (1995), 106 Ohio App. 3d 246, 270-271 -- (1) Argument focusing on victim's body being incinerated instead of given a proper burial improperly urged conviction based on the enormity of the crime, instead of because the evidence demanded the conclusion the defendant was guilty. (2) Argument was improper for imputing dishonesty, or belief in client's guilt, to defense counsel, to be inferred from request for instructions on lesser included offenses.
 
State v. Smith (1985), 29 Ohio App. 3d 9 -- Error to permit prosecutor to refer repeatedly during both trial and closing argument to pellet gun in defendant's possession at time of arrest but not involved in shoplifting he was charged with. Also see United Stated v. Reid (7th Cir. 1969), 410 F. 2d 1223, 1226; United States v. Warledo (10th Cir. 1977), 557 F. 2d 721, 725; United States v. Green (9th Cir. 1981), 648 F. 2d 587; United States v. Robinson (2nd Cir. 1977), 560 F. 2d 507, 513-514.
 
State v. Taniguchi (1994), 96 Ohio App. 3d 592, 596 -- A defendant's face and body are physical evidence and a prosecutor may comment on a defendant's demeanor. However, it is improper to ask the jury to return guilty verdicts in order to "maybe wipe the smirk off (the defendant's) face."
 
State v. Hart (1994), 94 Ohio App. 3d 665 -- Aggravated murder conviction reversed where prosecutors: (1) improperly focused on the victim's suffering when being strangled, (2) then claimed victim left for sixteen days before discovery would have starved to death (though the victim died from being strangled), (3) used photos of insect infestation in an inflammatory manner, and (4) denigrated defense counsel.
 
State v. Hudson (1993), 86 Ohio App. 3d 113 -- Conviction reversed where prosecutor referred to incident as being drug related, though not supported by the evidence, called upon jurors to serve public demand by ridding the community of people such as the defendant, and insinuated that the law hindered the fact finding process. Though an objection was sustained, the judge's comment that the prosecutor was not telling the jurors anything that they did not already know exacerbated the situation. Also see State v. Wills (1997), 120 Ohio App. 3d 320, 328-330.
 
State v. Hall (1995), 1995, 106 Ohio App. 3d 183 -- Improper for the prosecutor in closing to use a witness's seeming admission of welfare fraud as a point of departure for arguing she had children by the defendant to secure ADC benefits, and insinuating that if acquitted the defendant would father more children to be raised at public expense. Concurring opinion states cross on possible welfare fraud was improper.
 
State v. Akwal (1996), 76 Ohio St. 3d 324, 335 -- Error for prosecutor to argue the defendant would walk out the door if found NGRI, since this was an inaccurate statement of the law and an attempt to inflame the passions of the jury.

Improper Argument by Prosecutors - Matters Not of Record

United States v. Dorr (5th Cir. 1981), 636 F. 2d 117 -- It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence.
 
State v. Liberatore (1982), 69 Ohio St. 2d 583, 589-590 -- Misconduct and reversible error for prosecutors in closing to refer to statement used during an attempt to refresh recollection as substantive evidence, to comment at length on inferences to be drawn from matters not in evidence, to characterize the defendant in derogatory terms and to express personal opinions as to the credibility of a witness and as to the defendant's guilt. Also see Mostade v. Engle (1980), 23 Ohio Ops. 3d 108.
 
Columbus v. Hamilton (1992), 78 Ohio App. 3d 653 -- Court should have granted motion for mistrial after prosecutor in opening statement announced one charge would be dropped because of a missing witness, after having referred to that charge during voir dire.
 
State v. Tillman (1990), 66 Ohio App. 3d 464, 467-468 -- It is improper for a prosecutor to assert in closing argument that he refused to plea bargain with the defendant.
 
State v. Tumbleson (1996), 105 Ohio App. 3d 693, 698-700 -- It was improper for the prosecutor during argument to praise the codefendant for pleading guilty and faulting the defendant for going to trial.
 
State v. Miner (1968), 14 Ohio St. 2d 232 -- Improper for the prosecutor in closing to imply there had been an identification when the record shows no such event.
 
State v. Cocco (1943), 73 Ohio App. 182 -- (1) It is improper for the prosecutor to comment on a notice of alibi, with which he had been served, but which had not been filed. (2) It was improper for the prosecutor to claim in argument that the defendant had used various aliases, when there was no evidence that he had done so.

Improper Argument by Prosecutors - Comment on Defendant's Failure to Testify

Griffin v. California (1965), 380 U.S. 609 -- Prosecutor may not comment on defendant's failure to testify.
 
Portuondo v. Agard (2000), 529 U.S. 61, 120 S.Ct. 1119 -- Prosecutor's comment in argument that the defendant had had the opportunity to hear all the other witnesses testify and tailor his testimony accordingly held not to have violated his Fifth and Sixth Amendment right to be present at trial and to confrontation, nor did it deny his Fourteenth Amendment right to due process.
 
State v. Webb (1994), 70 Ohio St. 3d 325, 328 -- Defendant interrupted prosecutor's closing, saying "You're wrong." Prosecutor responded "He spoke." Court does not find a Griffin violation. Compare State v. Clark (1991), 74 Ohio App. 3d 151 (comment that the victim can't talk and the defendant won't).
 
State v. Smith (1998), 130 Ohio App. 3d 360, 366-367 -- Referring to defendant as "somebody who doesn't have an alibi" is a comment on the defendant's failure to testify, leading to reversal.
 
State v. Steinman (1992), 79 Ohio App. 3d 246, 251-253 -- Comment "I never even heard his client say he didn't do it" was improper.
 
United States v. Robinson (1988), 485 U.S. 25 -- There is no violation of a defendant's Fifth Amendment privilege when a prosecutor's assertion in argument that the defendant could have taken the stand was a "fair response" to assertions by defense counsel that the government had unfairly denied him an opportunity to explain his actions. Also see State v. Washington (June 20, 1978), Franklin Co. Case App. No. 77AP-947, unreported (1978 Opinions 1619, 1627-1630); State v. Auerbach (1923), 108 Ohio St. 96; United States v. Tasto (5th Cir. 1978), 586 F. 2d 1068.

Improper Argument by Prosecutors - Multiple Violations

State v. Freeman (2000), 138 Ohio App. 3d 408 -- Drug trafficking conviction is reversed because of multiple instances of improper comments by the prosecutor in closing argument, including: (1) Denigration of defense counsel by claim he had been dealt a bad hand in cards, but had to play them. (2) After offering to stipulate qualification of a forensic scientist, claiming he had testified in the guise of a scientist. (3) Implying friends of the defendant might seek retribution. (4) Creating a "dumb show" by referring to tapes not played for the jury or introduced in evidence, implying they should have been played by the defense, thus shifting the burden of proof. (5) Stating he had no idea why a witness had not been indicted. (6) Making the unsubstantiated comment "big-time dope dealers have a lot of money."

Improper Argument by the Defense

In re Contempt of Warner, Cuyahoga App. No. 83183, 2004-Ohio-2389 -- Trial counsel was summarily found in contempt based on reference to the offenses being the most serious in the state short of the death penalty, and the state's hope at least one of 22 counts would stick. Neither was a direct reference to the penalty. Record indicates no knowing or wilful defiance of the court's instructions.

Death Penalty Cases

State v. Apanovitch (1987), 33 Ohio St. 3d 19 -- In a death penalty trial, prosecutors planned to split closing, but defense elected not to argue, then claimed prosecutors had nothing to rebut. In these circumstances, R.C. 2945.10(G) allowed the court to permit final portion of argument by the prosecution.
 
State v. Brown (1988), 38 Ohio St. 3d 305, 316 -- Prosecutor should not refer to the death penalty during closing argument at the guilt phase.
 
Caldwell v. Mississippi (1985), 472 U.S. 320 -- In a death penalty trial, it is error to tell the jury that their decision is not the final decision as the case will be automatically reviewed by other courts.
 
State v. Bedford (1988), 39 Ohio St. 3d 122, 124-125 -- In argument at the penalty phase of a death penalty case it is improper to argue: (1) Capital punishment is an expression of society's moral outrage at particularly offensive conduct. [Also see State v. Byrd (1987), 32 Ohio St. 3d 79, 82-83.] (2) Laws might change and there is no guarantee defendant would actually have to serve the full 20 or 30 years.
 
Darden v.Wainwright (1986), 477 U.S. 168, 178-183 -- Reference to the defendant as an animal and assertion that the death penalty is only assurance defendant could not commit a similar act should he again be furloughed by the corrections authorities held to be improper argument, though under the circumstances of the case, not reversible error.
 
State v. Mapes (1985), 19 Ohio St. 3d 108, 116 -- If the defendant make an unsworn statement during the penalty phase, brief comment that it was not made under oath is not improper if directed at the credibility of the statement. Also see State v. Bedford (1988), 39 Ohio St. 3d 122, 125; State v. Jenkins (1984), 15 Ohio App. 3d 164.
 
State v. Gumm (1995), 73 Ohio St. 3d 413 -- Syllabus: "Subject to applicable Rules of Evidence, and pursuant to R.C. 2929.03(D)(1) and (2), counsel for the state at the penalty stage of a capital trial may introduce and comment upon (1) any evidence raised at the trial that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty, (2) any other testimony or evidence relevant to the nature and circumstances of the aggravating circumstances specified in the indictment of which the defendant was found guilty, (3) evidence rebutting the existence of any statutorily defined or other mitigating factors first asserted by the defendant, (4) the presentence investigation report, where one is requested by the defendant, and (5) the mental examination report, where one is requested by the defendant. Further, counsel for the state may comment upon the defendant's unsworn statement, if any. (R.C. 2929.03[D], construed; State v. DePew [1988], 38 Ohio St. 3d 275...affirmed and followed.)" But see p. 422 for the manner in which the jury is to be instructed. Also see State v. Hill (1996), 75 Ohio St. 3d 195, 199-202.
 
State v. Keenan (1993), 66 Ohio St. 3d 402 -- Conviction reversed in a death penalty case because of improper argument by prosecutor, which included denigration of defense counsel, appeals to emotion, expression of personal opinion and aspersions as to the character of the defendant's associates. Held to be a denial of due process. Also see State v. Lorraine (1993), 66 Ohio App. 3d 414, 430-431 (Wright, concurring opinion.) Compare State v. Fears (1999), 86 Ohio St. 3d 329, 332-336, where there were many incidents of misconduct but no reversal. See the strongly worded dissenting opinion.
 
State v. Wogenstahl (1996), 75 Ohio St. 3d 344 -- (1) Paragraph two of the syllabus: "It is improper for prosecutors at the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are 'aggravating circumstances.'" See p. 356 for clarification of State v. Gumm (1995), 73 Ohio St. 3d 413. Also see State v. Jones (2000), 90 Ohio St. 3d 403, 422. (2) at p. 358: "Clearly the prosecutor should have refrained from encouraging the jury to speculate as to the victim's final thoughts."
 
State v. Brooks (1996), 75 Ohio St. 3d 75 Ohio St. 3d 148, 158 -- Prosecutorial misconduct found in asking the jury at the sentencing phase of a capital trial to consider the effect the murders had on the victims' families when there was no evidence supporting this argument.
 
State v. Frazier (1995), 73 Ohio St. 3d 323, 341-342 -- Placing an empty chair in the middle of the courtroom and suggesting it represents the victim in a death penalty case was improper. Compare State v. Taylor (1997), 78 Ohio St. 3d 15, 28 "Evidence or comments about crime victims, including the impact of a crime on victims, do not offend the United States or Ohio Constitutions, and (in this case it is concluded) did not harm appellant."
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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