A MANUAL OF JURY TRIAL PROCEDURES - 2004
Go to Federal
Manuals Table of Contents - Go to Procedures
Table of Contents
Chapter Three: The Trial Phase
3.19 Closing Argument
A.
In General
B.
Response to Objectionable Closing Argument
C.
Admonishment of Counsel
D.
Curative Jury Instructions
E.
Time Limits
A MANUAL OF JURY TRIAL PROCEDURES - 2004
A. Closing Argument: In General
FORECITE National™ Materials Related To This Issues:
FORECITE National™ Chapter 272 Summation/Closing Argument To Jury
Lawyers are entitled to argue reasonable inferences from the evidence. United States v. Young, 470 U.S. 1, 9 n.7 (1985).
A MANUAL OF JURY TRIAL PROCEDURES - 2004
B. Closing Argument: Response to Objectionable Closing Argument
FORECITE National™ Materials Related To This Issues:
FORECITE National™ 272.4 [Prosecutor Misconduct During Summation/Closing Argument]
The district court has a duty to dispel prejudice from the government
's argument. See United States v. Rodrigues, 159 F.3d 439, 450-51 (9th Cir. 1998), amended by 170 F.3d 881 (9th Cir. 1999) (where district court did not "rebuke" government's counsel for "gratuitous attack on the veracity of defense counsel," district court took inadequate steps to dispel prejudice).Curative instructions and admonishment of counsel from trial courts play a crucial role in correcting objectionable closing arguments. "When prosecutorial conduct is called in question, the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury
's discharge of its duty to judge the evidence fairly." United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990) (citing United States v. Young, 470 U.S. 1, 11 (1985)). Examples of improper argument include vouching for witnesses, commenting on a criminal defendant's failure to testify and misstating the evidence. "A trial judge should be alert to deviations from proper argument and take prompt corrective action as appropriate." United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992) (citation omitted). Such action "may neutralize the damage by admonition to counsel or by appropriate curative instructions to the jury." Simtob, 901 F.2d at 806.A MANUAL OF JURY TRIAL PROCEDURES - 2004
C. Closing Argument: Admonishment Of Counsel
FORECITE National™ Materials Related To This Issues:
FORECITE National™ 272.5.3 [Duty Of Court to Reprimand Prosecutor For Misconduct Summation/Closing Argument]
Where counsel makes an improper argument, the court should admonish counsel and/or give the jury an appropriate curative instruction. United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997) (prosecutor
's unimpeded improper vouching for witness during questioning and summation required reversal). The admonishment may be done in the presence of the jury. See Guar. Serv. Corp. v. American Employers' Ins. Co., 893 F.2d 725, 729 (5th Cir.1990); United States v. Hoskins, 446 F.2d 564, 565 (9th Cir. 1971).A MANUAL OF JURY TRIAL PROCEDURES - 2004
D. Closing Argument: Curative Jury Instructions
FORECITE National™ Materials Related To This Issues:
FORECITE National™ 272.5 [Summation/Closing Argument: Curative Instructions]
When a court gives a curative instruction to the jury, the instruction should specifically address the improper argument, rather than state a boilerplate rule regarding evaluation of evidence. United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992); United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). For example, a belated instruction that the jurors "are the sole judges of the credibility of the witnesses" was insufficient to neutralize the harm caused when the prosecutor vouched for government witnesses. Kerr, 981 F.2d at 1053.
A MANUAL OF JURY TRIAL PROCEDURES - 2004
E. Closing Argument: Time Limits
"A district court has wide discretion in limiting time for closing arguments. Provided a defendant has adequate time to make all legally tenable arguments supported by the facts of the case, the district court will not be reversed for limiting closing arguments."
United States v. Munoz, 233 F.3d 1117, 1129 (9th Cir. 2000) (citations omitted) (trial court did not abuse discretion in denying defense attorney's request to use the remainder of his allotted time for argument after the government's rebuttal argument and a weekend recess). But care should be taken not to limit closing arguments unduly or arbitrarily.