Don’t let your client get CLOSED out

Identifying improper closing arguments in Florida prosecutions

by Luke Newman[1]

January, 2016

The witnesses have testified and the exhibits have been entered into evidence with the clerk. The judge has made legal rulings and copies of the jury instructions are warm off the printer. The time has come for defense counsel to endure the sandwich: the State’s initial closing argument and then its rebuttal. The concept seems simple enough: the proper exercise of closing argument is to review the evidence and to explicate those inferences that may reasonably be drawn from the evidence.[2] However, for decades, Florida appellate courts have reversed convictions because the State went overboard and made impermissible arguments. These impermissible arguments generally fall into between ten and twelve broad categories[3]. This article aims to identify; provide examples of and cite some authority on the most common types of impermissible closing argument. This article will not be all-inclusive and other writings address this problem.[4] Readers of The Florida Defender do not need a detailed explanation why the identification of and objection to improper argument is important. More than 20 years ago a Florida District Court Judge warned: “If lawyers do not recognize improper argument, they should not be in a courtroom.”[5]

Some advocates, in some circumstances, harbor a professional hesitancy to objecting during closing arguments. There are some professional considerations defense counsel must weigh prior to interrupting the State’s closing argument. Those professional considerations will vary wildly, as will almost all of the extra-judicial circumstances of any given prosecution. Ultimately, your client’s case outcome is the objective standard by which you will be judged. A client siting in a prison cell will not care about your collegial relationship with the prosecutor when (if) he realizes that a proper objection might have helped his case.

Professional experience with opposing counsel may even assist defense counsel in anticipating what arguments will be presented and whether they will be improper. Assistant State Attorneys are notorious creatures of habit who use the same lines of closing argument in trial after trial.[6] The State’s arguments are cultivated, tested, shared, and passed down through the generations of prosecutors who come through the office. Knowing the history and tendencies of opposing counsel can provide knowledge that will help you better protect your client’s constitutional rights. A valid professional consideration is an acknowledgement that the State is permitted wide latitude to respond to arguments made by the defense, especially arguments that might themselves be improper. A line of authority exists which allows the State to ‘fight fire with fire’ and respond to any improper defense arguments with less scrutiny from the bench. A prosecutor’s comments will be viewed as proper if they are invited by the defense.[7] Also a tactical note – please review Brown v. State, 18 So. 3d 1149 (Fla. 4th DCA 2009) if you encounter the State making a ‘bare bones’ initial closing argument followed by the presentation of an actual closing argument during ‘rebuttal.’

The best practice upon recognizing an improper argument it to interject with an immediate objection followed by a motion for a mistrial. Failing to object or failing to move for a mistrial will be considered an implied waiver by a reviewing appellate court.[8] When a closing argument issue is briefed on appeal, there are two possible standards of review. The standard of review used by the appellate court will depend on whether trial counsel objected to the argument at the time it was made.

Where an objection and motion for mistrial are made, an appellate court will review the trial court’s ruling under an abuse of discretion standard. A motion for mistrial should be granted when it is necessary to ensure that the defendant receives a fair trial.[9] To be entitled to a new trial based on a prosecutor’s improper argument, a defendant will be required to show on appeal that the State’s comment or argument deprived him or her of a fair and impartial trial, materially contributed to the conviction, was so harmful or fundamentally tainted as to require a new trial, or was so inflammatory that it might have influenced the jury to reach a more severe verdict than it would have otherwise.[10]

Where no objection is imposed, the State’s arguments will be reviewed under the fundamental error standard. In order to establish fundamental error, the defendant will be required to convince an appellate court that the improper argument reached 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 error.[11] Therefore, failing to interpose an objection deprives a defendant of the possibility of arguing on appeal that the improper argument merely deprived him of a fair trial, materially contributed to the conviction or was so inflammatory that it might have influenced the jury to reach a more severe verdict.

“Shifting the burden” or “burden shifting” are phrases seen throughout closing argument cases because the phraseology can apply to many of the more specific categories below. Obviously a prosecutor who argues that the defendant has to establish his innocence would be improperly “shifting the burden” but that argument would be more specifically addressed as an instruction on juror duties or functions. Throughout the categories below (and the authority cited therein) the reader will encounter “shift the burden” or “shifting the burden” language. This article, aiming to help identify improper arguments and provide authority for trial practitioners, will address these circumstances individually below in the most specific possible manner.

Comments on a Defendant’s right to remain silent, failure to testify and/or right to a jury trial:

The state is not allowed to use defendant’s silence to raise an inference of guilt which would tend to relieve the state of some portion of its burden to prove defendant’s guilt beyond a reasonable doubt. State v. Kinchen, 490 So. 2d 21 (Fla. 1985).

While it is proper for the prosecutor to argue that a defendant’s refusal to perform field sobriety tests and submit to a breath test constituted consciousness of guilt, it is improper for the State to argue that “an innocent man if arrested would say ‘I haven’t been drinking, why are you arresting me?’” or to argue that an innocent man would volunteer to take a breath test: “’That [innocent] man is thinking, yes, get me to that, get me to that instrument, let me take that breath test, let me prove this officer wrong.’” Morris v. State, 988 So. 2d 120 (Fla. 5th DCA 2008).

Even where a comment is “fairly susceptible” of being interpreted by the jury as a comment on the defendant’s exercise of his right to remain silent – an appellate court is supposed to treat it as such. State v. Smith, 573 So. 2d 306, 317 (Fla. 1990). The defendant in State v. Hoggins, 718 So. 2d 761 (Fla. 1998) testified and the State later argued that: “He gave this statement under oath, but never anytime previous to today did he ever say this story to the police about how he came across this money and stuff.” Hoggins’ conviction was reversed and he was afforded a new trial.

Even telling the jury that the defendant has the right to remain silent is a comment on the failure to testify. While the fact that he has the right is obvious to the jury, emphasizing that fact is improper and warrants reversal. Reversal is required where the State argues: “The defendant has had the opportunity to be able to have a jury trial and he has that right. He had the right to remain silent-“ Wilson v. State, 988 So. 2d 43, 44 (Fla. 3rd DCA 2008).

This concept extends to a defendant’s right to a jury trial. “[T]here is not a lot [Defendant] can argue.” Prosecutor then followed up by saying that no matter how strong the evidence is against a criminal defendant, he or she still has a right to a jury trial in America, using the videotape and the “hundred priests” examples. Evans v. State, 177 So. 3d 1219, 1236 (Fla. 2015)

Telling the jury “everybody here probably would like to hear both sides of the story” is an improper comment Defendant’s right to remain silent, and warrants reversal. Hopkins v. State, 996 So. 2d 236 (Fla. 1st DCA 2008).

Where the defendant remains silent, the State is forbidden from asking the jury why there is no “reasonable explanation” as to the evidence introduced. Asking the jury to ponder why there is no “reasonable explanation” is a comment on the defendant’s silence and warrants reversal where preserved by objection and motion for mistrial. Evans v. State, 26 So. 3d 85, 91 (Fla. 2d DCA 2010).

An argument in closing that “no one took the stand to contradict the state’s case” is improper.

Henderson v. State, 69 So. 3d 1022 (Fla. 4th DCA 2011).

It is also error for a prosecutor to argue that evidence not presented to the jury (here, a surveillance video of a theft) could have been presented by the defense if they chose. The State cannot comment on the defense’s failure to present evidence to refute an element of the crime, because to do so shifts the burden to the defense to prove innocence. In Covington v. State, 75 So. 3d 317 (Fla. 4th DCA 2011) the DCA reversed a conviction where the State made the following argument: “And then a huge part about this video. Gosh, video that existed, it was a surveillance, State didn’t show it to you. Well, you know what? They could have got it too. They could have shown it to you. They had just as much of an opportunity to go and ask for that video as we did.”

Argument beyond the evidence or arguing facts not in evidence:

Attorneys must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” Knoizen v. Bruegger, 713 So. 2d 1071 (Fla. 5th DCA 1998) (citing Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993)). It is improper for the State to argue that certain witnesses, if called, would testifiy in a certain manner: “The State would submit to you that Miss Ison and Mr. Southward, as indicated, could testify to nothing different than was already testified on that stand.” is an improper argument where neither Mss Ison or Mr. Southward testified at trial. Hazelwood v. State, 658 So. 2d 1241 (Fla. 4th DCA 1995).

The State is prohibited from arguing in a manner that would suggest it is in possession of additional evidence and proof of guilt which has not been provided to the jury. Ford v. State, 702 So. 2d 279 (Fla. 4th DCA 1997); Stewart v. State, 622 So.2d 51, 56 (Fla. 5th DCA 1993).

In a case where identity is at issue, and the defense argues that the victims failed to identify distinctive tattoos, the State is not allowed to argue that the defendant obtained the tattoos after the offense in the absence of evidence showing that fact. Making that argument without a basis in evidence warrants reversal. Hosang v. State, 984 So. 2d 671 (Fla. 4th DCA 2008).

Hypothetically attributing statements to a defendant in a case where the statements were not introduced in evidence is an impermissible argument. The State cannot properly argue to the jury that a defendant made an incriminating statement to another witness prior to the offense where no such statement is introduced. In Williams v. State, 10 So. 3d 218, 220 (Fla. 3d DCA 2009), the prosecutor suggested that Mr. Williams had a conversation with another witness prior to a shooting as part of a hypothetical scenario. The judgment and sentence were affirmed only because there was no reasonable doubt that the argument could have contributed to the verdict. The State’s invention of dialogue drew a strong response from the District Court panel. Judge Ramirez, writing a concurrence, rebuked the prosecutor for arguing matters not in evidence during the closing argument and wrote: “I will henceforth publish [the names of offending prosecutors] so that their questionable tactics appear in the permanent record of the Southern Reporter.”

The prosecutor in Williams additionally argued that in the area where this crime took place, witnesses were afraid to come forward. That there were other witnesses who could have testified but they knew Williams and the victim were “not nice guys” and therefore, they were afraid to come forward. There had been no evidence that Williams had threatened any witnesses, that any of the witnesses knew him, that he had any criminal history or that he was “not a nice guy.”

It is improper for the State to argue that the defendant tried to conceal drugs which were located inside a car he was driving. Where the car did not belong to the defendant and no evidence shows defendant put the drugs under the car’s seat, the state’s argument that the defendant had tried to conceal drugs under the seat was error. Watson v. State, 50 So. 3d 685 (Fla. 3d DCA 2010).

Where there is no evidence introduced that a witness is scared of a defendant, a State argument that recantation or failure to identify a defendant in court is based on fear is improper. Narcisse v. State, 166 So. 3d 954 (Fla. 4th DCA 2015). The State is not permitted to argue: “Because when I asked him if he could identify anybody, did you see his eyes? They were darting everywhere, and he would look at [Appellant] and then go back to darting around. I would argue to you that [the victim] was scared.” This type of argument implies that Defendant may have engaged in witness tampering or suborning perjury. These comments are ‘highly irregular, impermissible, and prejudicial.’ Additionally, because there was no evidence that the victim recanted the identification because he was afraid, the comments implied that the prosecutor had ‘unique knowledge’ that was not presented to the jury. Pierre v. State, 88 So. 3d 354, 355 (Fla. 4th DCA 2012).

Misstatement of law:

The State is not allowed to improperly frame an issue of law during closing. Where a defendant is charged with witness tampering which requires witness intimidation, it is improper for the State to argue that manipulation is a form of intimidation. Banegas-Membran v. State, No. 4D14-2681, 2016 WL 72547, at *2 (Fla. 4th DCA Jan. 6, 2016).

The test for reasonable doubt is not which side is more believable, but whether, taking all the evidence in the case into consideration, guilt as to every essential element of the charge has been proven beyond reasonable doubt. Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992).

The most common misstatement of law cases seem to involve an argument goes as follows: “if you believe the victim, you have to convict the defendant” or “in order to find the defendant not guilty you have to believe everything he’s told you today.” Charriez v. State, 96 So. 3d 1127, 1128 (Fla. 5th DCA 2012). These arguments invite jurors to vote based on individual credibility determinations and to ignore their instructions to take all evidence into consideration and evaluate the elements of the charged offense. Gore v. State, 719 So. 2d 1197 (Fla. 1998)

In Mitchell v. State, 118 So. 3d 295 (Fla. 3d DCA 2013), the State argued as follows: “What the defense is asking you do is to believe that every single witness in this case is a liar, because that’s what would have to happen for this man over here to be not guilty. Every single person has to be a liar except him” and “You would have to take the evidence that Doctor Carro gave you, find that she is wrong. You would have to then also take what Gary Pitterman said and that what he said didn’t happen at all, because you can’t have both what the defendant said and what Mr. Pitterman said.”

“The question before you, now that you heard all the evidence in the case, is do you believe Officer Tellez or do you believe Articha Carter” and “That’s why this comes down to [who] do you believe.” Covington v. State, 842 So. 2d 170 (Fla. 3d DCA 2003) held that these arguments were improper but upheld the judgment and sentence based on a harmless error analysis.

It is improper for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt. Atkins v. State, 878 So. 2d 460 (Fla. 3d DCA 2004). This includes an argument that a guilty verdict reflects “the truth”. Northard v. State, 675 So. 2d 652 (Fla. 4th DCA 1996) (finding that prosecutor’s argument improperly invited jury to find defendant guilty based on a determination of the “truth” rather than a finding that the state established guilt beyond a reasonable doubt).

Prosecutorial expertise:

Courts have repeatedly condemned a prosecutor’s arguments that rely on the expertise of their office or the alleged “good faith” of the prosecution. Harris v. State, 570 So. 2d 397 (Fla. 3d DCA 1990)(holding that the prosecutor exceeded acceptable limits by arguing to the jury her personal opinion that information must be believed because it had been sworn to as being filed in good faith by the prosecution); see also Riley v. State, 560 So. 2d 279 (Fla. 3d DCA 1990)(“I don’t prosecute people who have legitimate self-defense claims.”).

Florida Bar Rule 4–3.4(e): “A lawyer shall not: … (e) … assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.” Similar to the impropriety involved in having a prosecutor comment on his personal opinion regarding a witness’ veracity, it is improper for a prosecutor to comment on his personal opinion of the justness of any given case. Servis v. State, 855 So. 2d 1190 (Fla. 5th DCA 2003) (“It is improper for an attorney to give a personal opinion as to the justness of the cause ….”).

It is inappropriate to give the jury the benefit of the composite judgment of the State Attorney’s staff allegedly reached on the basis of investigations and discussions taking place before the trial.

Pait v. State, 112 So. 2d 380 (Fla. 1959). In Pait, the state argued: “Before each murder trial that is prosecuted in this circuit, where I’m the State Attorney, a conference is held between me and my assistants to determine whether or not the facts in the case justify the State’s giving maximum punishment under the law.”

The State engages in improper argument by stating: “What interest do we [prosecutors] as representatives of the citizens of this county have in convicting somebody other than the person—.” Ruiz v. State, 743 So. 2d 1, 5 (Fla. 1999)(“It is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.”); Isom v. State, 81 So. 3d 642 (Fla. 5th DCA 2012)(Cohen, J., Concurring).

Any argument which states or implies that “we only prosecute the guilty ones” is impermissible. Hall v. United States, 419 F.2d 582 (5th Cir.1969)(“This statement takes guilt as a pre-determined fact. The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them.”).

“We didn’t charge anything that we couldn’t prove. What we charged was provable.” Johns v. State, 832 So. 2d 959, 962 (Fla. 2d DCA 2002)(finding improper the state’s remarks that it had charged the right defendant and only brought charges it could prove).

It is improper for the prosecutor to state in opening, “My office reviews these complaint affidavits and whether they should file charges or not. And our office did decide to file charges. That’s why we’re here today.” The prosecutor may not comment on his own office’s decision whether to file charges. It is improper for the prosecutor to argue that his office reviews the complaints and decides when to go forward. Such an argument puts the prestige of the government behind the victim, and the court errs in failing to grant a mistrial. Brinson v. State, 153 So. 3d 972 (Fla. 5th DCA 2015).

Personal attacks on defense counsel or the defendant:

Personal attacks on defense counsel are not allowed. Claims of manipulation and deception by opposing counsel have no place in a closing argument. “See this man here who claims to be a lawyer in good standing in Miami, Florida,” and “[t]hat is the same guy who is going to get up when I sit down and try to tell you what the evidence showed.” Del Rio v. State, 732 So. 2d 1100 (Fla. 3d DCA 1999).

Referring to defense counsel as a “cheap shot artist” is impermissible. Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982).

Telling the jurors that defense counsel “…knows that his client is guilty” and is engaging in “cheap tricks” is impermissible. Redish v. State, 525 So. 2d 928, 931 (Fla. 1st DCA 1988).

Telling the jury that, “The only conflicts are between the defense attorney and the evidence. … Don’t be manipulated. Don’t be gullible.” constitutes an improper attack on the integrity and character of defense counsel and is improper. Wicklow v. State, 43 So. 3d 85 (Fla. 4th DCA 2010).

Personal attacks, dehumanizing comments and pejorative characterizations against the defendant are likewise improper. “His violence speaks for itself. You know what? Sometimes it’s really sad a person can’t be fixed.” Delhall v. State, 95 So. 3d 134, 168 (Fla. 2012).

A prosecutor should not engage in vituperative or pejorative characterizations of a witness or defendant, including calling the witness a liar. “I was expecting them to say that the sun was in their eyes and the dog ate their homework.” Montanye v. State, 976 So. 2d 29, 31 (Fla. 5th DCA 2008).

“You know, Ladies and Gentlemen, there’s a lot of rules and procedures that I have to follow in court, and there’s a lot of things I can say or can’t say, but there’s one thing the Judge can’t ever make me say and that is he can never make me say that’s a human being.” Gore v. State, 719 So. 2d 1197, 1201 (Fla. 1998).

“Vouching” or “bolstering” arguments:

“It is … improper for the state to vouch for the credibility of a police officer by arguing that the jury should believe police officers solely because they are police officers.” Johnson v. State, 801 So.2d 141, 142 (Fla. 4th DCA 2001). “This court has repeatedly condemned comments that the jury should believe a police officer because the officer would not put his or her career on the line by committing perjury.” Sinclair v. State, 717 So.2d 99, 100 (Fla. 4th DCA 1998).

A prosecutor may not argue that police officers would not lie because to do so would jeopardize their careers. Improper vouching for the credibility of the officers warrants reversal.

Davis v. State, 937 So. 2d 273 (Fla. 4th DCA 2006)

It is improper for the State to argue that the testifying officer is: “…not the man to come in here and violate [his] oath.” Cisneros v. State, 678 So. 2d 888 (Fla. 4th DCA 1996).

“Yes, he wants you to trust him because he is trustworthy. There is no reason for him to lie to you. He told you that. You could judge his credibility.” Such “ham-handed” efforts at bolstering the officer’s testimony are clearly improper, and the conviction is reversed. Rodriguez v. State, 88 So. 3d 405, 407 (Fla. 3d DCA 2012).

Vouching arguments extend beyond the vouching for police officers and cover State expert witnesses as well as other State witnesses such as informants and victims. “I can stand here today, ladies and gentlemen, as an officer of this Court, and tell you that [the informant] is not getting anything out of this.” Becker v. State, 110 So. 3d 473 (Fla. 4th DCA 2013). “Don’t let [the defendant] walk simply because [the victim] is super honest or super accurate.” Lewis v. State, 711 So. 2d 205, 207 (Fla. 3rd DCA 1998).

It is improper for an attorney to express a personal opinion as to the credibility of a witness. Johnson v. State, 801 So.2d 141 (Fla. 4th DCA 2001); Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984); Florida Bar Rule 4–3.4(e).

Golden Rule:

A ‘golden rule’ argument asks the jurors to place themselves in the victim’s position and asks the jurors to imagine the victim’s pain and terror or imagine how they would feel if the victim were a relative. Hutchinson v. State, 882 So. 2d 943, 954 (Fla. 2004). “[I]t might not be a bad idea to look at [the knife] and think about what it would feel like if it went two inches into your neck[.]” is an improper argument. Davis v. State, 604 So. 2d 794 (Fla. 1992). “Was she feeling any endorphins, was she feeling a sense of calm, or was she feeling deep sadness, fear, pain, cruelty, what does our common sense tell us?” Orme v. State, No. SC13-819, 2015 WL 8469221, at *7 (Fla. Dec. 10, 2015)

Asking the jurors to imagine how they would feel if the victim were a relative is also a subset of a “golden rule” argument. Hutchinson v. State, 882 So.2d 943 (Fla. 2004).

A subtle form of the “golden rule” argument is the “imaginary scenario”: this is an argument that asks the jury to put his or her own imaginary words in the victim’s mouth, i.e., ‘Don’t hurt me. Take my money, take my jewelry. Don’t hurt me.’” Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998); “If [the victim] were here, she would probably argue the defendant should be punished for what he did.” Garron v. State, 528 So. 2d 353 (Fla. 1988); Impermissible to argue victim “didn’t beg [Defendant], please, Mike, let me go, you are hurting me.” Orme v. State, No. SC13-819, 2015 WL 8469221, at *7 (Fla. Dec. 10, 2015)

Message to the community / conscious of the community / community sensibilities:

Message to the community arguments are impermissible–they are “an obvious appeal to the emotions and fears of the jurors.” A prosecutor “clearly overstepped the bounds of proper argument” in arguing to the jury: “Anything less in this case would only confirm what we see running around on the bumper stickers of these cars, and that is that only the victim gets the death penalty.” Bertolotti v. State, 476 So. 2d 130 (Fla. 1985).

The “message” argument is not limited to the community and it is also improper for the State to argue that the jurors should send a message to the defendant. Fletcher v. State, 168 So. 3d 186 (Fla. 2015). “Now this defendant wants a life sentence for robbing somebody and murdering them. What kind of message would that send—what kind of message would a life recommendation send to this defendant?” Urbin v. State, 714 So. 2d 411 (Fla. 1998); “The death penalty is a message sent to certain members of our society who choose not to follow the rules.” Campbell v. State, 679 So. 2d 720 (Fla. 1996)

Florida courts consistently have condemned impassioned arguments which appeal to the jury’s community sensibilities or civil conscience. Smith v. State, 818 So. 2d 707, 710 (Fla. 5th DCA 2002). In a wildlife crime trial, prosecutor was “out of line” in fashioning herself as a representative of the community, and suggesting to the jury that they consider the unfairness to other “legal” fishermen. Birren v. State, 750 So. 2d 168 (Fla. 3d DCA 2000). “Crime is not pleasant. It’s uncomfortable. But you sit as the conscience, and your verdict projects or compels a conscience upon –“ Otero v. State, 754 So.2d 765 (Fla. 3d DCA 2000). “[W]hen you folks speak, the community speaks” Williard v. State, 462 So. 2d 102 (Fla. 2d DCA 1985).

It is improper for a prosecutor to tell or to infer to jurors that it is their duty to convict the accused for the good of society. Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994) “If the defendant walks out of here a free man today, that’s your decision,” and, “Now, does he walk out of this courtroom today laughing, or do you make him take responsibility for what he did to [the victim] that night?”

Instruct Jury as to Duties and Functions:

It is improper to argue that the jury would be “‘in violation of your oath as jurors’ if they ‘succumb[ed] to the defense argument’” Redish v. State, 525 So. 2d 928 (Fla. 1st DCA 1988), this type of remark is… an impermissible attempt by the prosecution to instruct the jury as to its duties and functions.”

“You go right back there, and you say not guilty. I can only tell you that based on the law, and based on the evidence that’s been presented to you, this would be contrary to the law, and would not be a verdict that speaks the truth, and you took that oath.” Judge Glickstein found this comment to be improper in his dissent in LeFleur v. State, 569 So. 2d 1383 (Fla. 4th DCA 1990).

“I’m going to ask you to follow the law. I’m going to ask you to do your duty.” Urbin v. State, 714 So. 2d 411 (Fla. 1998).

“[I]t is your sworn duty as you came in and became jurors to come back with a determination that the defendant should die for his actions.” Garron v. State, 528 So. 2d 353 (Fla. 1988).

Suggesting the defense manufactured testimony:

A suggestion in closing that the defendant suborned perjury or manufactured evidence, without foundation, is completely improper. While the prosecutor can question the credibility of a witness whose testimony differs from that of a state witness, to suggest that the defense engaged in witness tampering or suborned perjury is improper. Arguing that the defendant got the witness to testify for him, and that they “concocted” the story, is improper. “This is the sister of the defendant who hey sister-in-law, take the stand testify on my behalf. Go ahead say that. Hook me up. Help me out. I proffer to you that’s what that was. A woman who had no opportunity to see anything other than what benefits him.” Evans v. State, 62 So. 3d 1203 (Fla. 4th DCA 2011)

A prosecutor may not argue that “somebody ‘got to’ one of the defense alibi witnesses,” without any evidence whatsoever of any improper contact with the witness. The fact that a witness is impeached may imply that the witness is lying, but it does not imply that someone else has made the witness change her story. The implication of such comments is that the defendant has engaged in witness tampering or suborning perjury. Henry v. State, 651 So. 2d 1267 (Fla. 4th DCA 1995).

Without any basis the State may not argue that: “[Defendant] asked his friend to come in here and tell you that nothing happened and this was completely fabricated.” Chavers v. State, 964 So. 2d 790 (Fla. 4th DCA 2007)

Without supporting evidence, the prosecutor may not suggest to the jury that it could infer that witness had been threatened and that such threat was made by or on behalf of the defendant. These comments are improper, prejudicial, and should not be permitted by the trial court. Louzon v. State, 78 So. 3d 678 (Fla. 5th DCA 2012).

Sympathy / prejudice:

This seems like it should go without saying because of the standard jury instructions but appealing to sympathy or prejudice is improper.

“All I’m going to ask you for is justice. I ask you for justice both on behalf of myself and the people of the State of Florida, also on behalf of [victim’s] wife and children.” Edwards v. State, 428 So. 2d 357 (Fla. 3rd DCA 1983).

“As is usually the case, the victim is on trial for something,” improperly appealed to the jury for sympathy for the victim. An appeal to the jury for sympathy for the victim creates hostile emotions toward the accused. Additionally, this phrase makes improper reference to other cases and suggests that accusing the victim of wrongdoing is simply an improper defense tactic that the prosecutor has seen many times. Wicklow v. State, 43 So. 3d 85, 87 (Fla. 4th DCA 2010)

During rebuttal argument, the prosecutor told the story of the case through the voice of the eight-year old victim. The objectionable portion of the argument began, “Hi, I’m Joey and I’m eight,” and continued in the first person for ten pages of transcript. Although creative and well-phrased, the argument was an improper appeal to the jury for sympathy for the victim. Dial v. State, 922 So.2d 1018 (Fla. 4th DCA 2006).

“You folks, I’d ask that you not forget the victim as you sit in this courtroom and you see the defendant’s mother, and younger brother.” Johns v. State, 832 So. 2d 959 (Fla. 2d DCA 2002).

Use of racial slurs in closing argument that do not tend to prove any element of the offenses charged are objectionable and improper. Rich v. State, 18 So. 3d 1227 (Fla. 4th DCA 2009);

Guerrero v. State, 125 So. 3d 811 (Fla. 4th DCA 2013) relying on Jones v. State, 748 So. 2d 1012 (Fla. 1999)(“Although we strongly caution prosecutors against eliciting testimony involving racial slurs unless absolutely necessary, we understand that there are limited circumstances where the use of such offensive terms may be directly material to the issues in the case or to the testimony being offered.”).

Death penalty:

Capital litigation comes with its own issues, procedures and (on the part of defense counsel) responsibilities. Mandatory training required by Rule 3.112 covers the issues specific to capital cases. There are a handful of death penalty arguments that warrant objection and, where appropriate, reversal.

“Future dangerousness” arguments as a basis to impose death are “prosecutorial overkill” Teffeteller v. State, 439 So. 2d 840 (Fla.1983); Delhall v. State, 95 So. 3d 134 (Fla. 2012).

An argument asking the jury to show the Defendant the “same mercy” that the Defendant allegedly showed the victim is also impermissible. Merck v. State, 975 So. 2d 1054 (Fla. 2007) “The Defense will be talking to you about what we call mitigation. Things about [the Defendant’s] background they believe should warrant you affording him some mercy that he never afforded [victim].

The Florida Supreme Court has explicitly cautioned prosecutors against the use of argument which invokes religion because such argument can easily cross the boundary of proper argument and become prejudicial argument. Additionally, the Florida Supreme Court has found that the use of the word “exterminate” or any similar term which tends to dehumanize a capital defendant to be improper. Bonifay v. State, 680 So. 2d 413 (Fla. 1996).

[1] Luke Newman is a Board Certified Specialist in Criminal Appeals. He is in private practice in Tallahassee, Florida. Luke Newman would like to extend thanks and appreciation to Glen Gifford at the Office of the Public Defender, Second Judicial Circuit, for helpful editing and organization of this article.

[2] Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985)

[3] Bell v. State, 723 So. 2d 896 (Fla. 2d DCA 1998)(Altenbernd, A.C.J.: “There are about a dozen bad tactics that this court sees with regularity in closing arguments.”)

[4] Criminal Law Section to Distribute Handbook on Closing Arguments, Fla. B. News Oct. 15, 2000; Closing Arguments in Criminal Cases, Updated Case Law Manual, available at http://www.flacls.org/closing-arguments-manual/ ; Trespassing on Due Process, by Tony Bornstein, The Champion, Mar. 2010 at 38; Calling the Witness a Liar During Closing Argument: The Florida Supreme Court’s Final Approval, by Craig Lee Montz, Fla. B.J. Oct. 2001; Video Explores the Dos and Don’ts of Closing Arguments, Fla. B. News Oct. 15, 2000.

[5] Luce v. State, 642 So. 2d 642 (Fla. 2d DCA 1994) (Blue, J., concurring specially).

[6] As an ‘appellate attorney’ I have read closing arguments in one or two Fourth Circuit murder trials. I have read the following three lines of argument: “To the living we owe respect but to the dead we owe the truth” –and- “(Victim name), (victim age), forever” –and- ‘If you don’t like the holes in the investigation you’re free to call the JSO or the FBI or whoever you want once this trial is over.’ Uncanny – I later heard those first two lines of argument on TV while I was watching closing arguments in the George Zimmerman trial and the Michael Dunn trial. I had heard the third line of argument previously while watching closing arguments in the Brenton Butler case in Murder on a Sunday Morning.

[7] Scott v. State, 66 So. 3d 923, 930 (Fla. 2011); Schwarck v. State, 568 So. 2d 1326, 1327 (Fla. 3d DCA 1990).

[8] State v. Cumbie, 380 So.2d 1031, 1033 (Fla.1980).

[9] Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008).

[10] Spencer v. State, 645 So.2d 377, 383 (Fla.1994); Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997) (“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.”)

[11] Rimmer v. State, 825 So. 2d 304, 323 (Fla. 2002).