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272.1 Summation/Closing Argument: General Principles

    272.1.1 Right To Summation/Closing Argument Founded On Fundamental Federal Constitutional Rights
    272.1.2 Summation/Closing Argument: Jurors Should Listen Closely To The Arguments And Pay "Close Attention"
    272.1.3 Summation/Closing Argument Instruction
    272.1.4 Conflict Between Jury's Recollection And Summation/Closing Argument As To Evidence: Jury May Ask For Readback
    272.1.5 Instruction To Disregard Theories Advanced During Summation/Closing Argument For Which No Substantial Evidence Was Presented

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 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: The right of argument to the jury is grounded on the fundamental federal constitutional right to fair trial by jury and the right to effective representation of counsel. (See Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]; see also Gentry v. Roe (9th Cir. 2002) 300 F3d 1007, 1014 ["Closing argument is not simply a pro forma aspect of the criminal case, but an essential one"]; United States v. Sayetsitty (9th Cir. 1997) 107 F3d 1405, 1409 [with regard to closing arguments, the parties may argue any reasonable inferences from the evidence, and the court must give them "wide latitude" to do so]; United States v. Miguel (9th Cir. 2003) 338 F3d 995 at 1001.)

    "The right to closing summation by counsel is an important substantive right. Denial of that right is an abridgement of the defendant’s Constitutional right to full representation by counsel." (Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 4:2; see also Commonwealth v. McNair (PA 1966) 222 A2d 599, 600; see also Closing Arguments, Wharton’s Criminal Procedure (West, 13th ed. 1989) §§ 448-61.)

    Denial or impairment of closing argument may also implicate the defendant's rights to due process and trial by jury. For example, the argument of counsel may be necessary to fully inform the jury as to defense theories and other instructional matters. (See generally NCJIC 272.3.3 [Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions].) ". . . The entitlement to an instruction is interwoven with the right to argue specific points to the jury." (BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 131.101.)

    See also NCJIC 300.1.13 [Summation/Closing Argument: Guaranteed By Constitutional Rights To Counsel, Due Process, Trial By Jury].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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 VOLUME 13 - CHAPTER 272

RATIONALE: Most standard pattern instructions inform the jury that the argument of counsel is not evidence. However, the jury should not take this to mean that they shouldn't closely and carefully consider the arguments.

POINTS AND AUTHORITIES: The right of argument to the jury is grounded on the fundamental federal constitutional right to fair trial by jury and the right to effective representation of counsel. (See Herring v. New York (1975) 422 US 853, 858 [95 SCt 2550; 45 LEd2d 593]; see also NCJIC 272.1.1 [Right To Summation/Closing Argument Founded On Fundamental Federal Constitutional Rights]; see also NCJIC 300.1.13 [Summation/Closing Argument: Guaranteed By Constitutional Rights To Counsel, Due Process, Trial By Jury].) The instructions should not diminish the importance of this right in the minds of the jurors.

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

SAMPLE INSTRUCTION # 1:

    The opening statements and closing arguments of counsel are not evidence but you should pay close attention to them.

[See 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.01 [Preliminary Instruction] ¶ 8 (2001).]

    What the attorneys say during argument is not evidence. However, do listen closely to their arguments since they may aid you in understanding the evidence and instructions.

[Cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 1.02 [Closing Argument] (Florida Bar, 1987).]

    You are not required to accept the arguments of counsel in whole or part.  However, you may adopt the arguments or portions thereof as your own and give them whatever weight you deem appropriate.

[Cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 3:02. [Final Instruction To Jury-Complete Charge After Trial–Model] (West, 1988).]

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PRACTICE NOTE: A preclosing argument instruction may help the jury evaluate the arguments.  (See e.g., Alexander, MAINE JURY INSTRUCTIONS MANUAL 5-8.) [Instruction 12-Closing Argument] (Lexis, 1999).)

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

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 VOLUME 13 - CHAPTER 272

RATIONALE: If the jury’s recollection of the evidence conflicts with the argument of counsel, it should not be assumed that the jury’s recollection is correct. Therefore, the jury should be instructed to consider asking for a readback of the testimony in such circumstances, rather than being told to rely on its own recollection over that expressed by counsel during argument.

POINTS AND AUTHORITIES: It is, of course, well settled that the jury is the ultimate arbiter of the facts and that the jury may reject any argument of counsel as to the facts should such argument not be supported by the evidence. However, given the fact that the argument of counsel has the purpose of advancing the party’s theory of the case, and considering that counsel may, in fact, be more familiar with the evidence than the jury, it is unwarranted to assume that the jury’s recollection of the evidence will always correct.

    Accordingly, to instruct a jury that its own recollection should control, even though it may conflict with the argument of counsel, may undermine the fairness and reliability of the trial and arbitrarily deny a party the right to present its theory of the case to the jury. (See generally NCJIC 250.1 [Grounds For Instruction On Defense Theory].)

    Nevertheless, many standard instructions say just this. (See e.g., O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 12.07 [Jury's Recollection Controls] (West, 5th ed. 2000) ["...[I]t is your recollection which should control during your deliberations and not the statements of the Court or of counsel"]; 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.06 [Evidence-Excluding What Is Not Evidence] ¶ 1, sent. 5 & 6 (1997) ["In the final analysis...it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you"]; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 1.06 [What Is Not Evidence] ¶ 5, sent. 3 (1999) ["If the evidence as you remember it differs from what the lawyer said, your memory is what counts"]; 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL BI 4.2 [Consideration Of The Evidence, Direct And Circumstantial-Argument Of Counsel Comments By The Court] ¶ 1, Sent. 4 (1997) ["It is your own recollection and interpretation of the evidence that controls. What the lawyers say is not binding upon you"]; see also U.S. v. Thame (3rd Cir. 1988) 846 F2d 200, 204 [approving instruction that jury’s recollection of the evidence controlled over any statement by counsel]; Alexander, MAINE JURY INSTRUCTIONS MANUAL 5-8 [Instruction 12-Closing Argument] (Lexis, 1999) ["If during the course of argument, counsel’s recollection on some point of evidence differs from your own, it will be your recollection of the evidence that is important]".)

    Such instructions should be supplemented with additional language informing the jury that it may request a readback of any testimony about which it is not certain.

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].

See 9th Circuit Pattern Jury Instructions 1.10 [No Transcript Available To Jury].

See also 8th Circuit Pattern Jury Instructions 1.01 [General: Nature of Case; Nature of Indictment; Burden  of Proof; Presumption of Innocence; Duty of Jury; Cautionary].

See also Federal Judicial Center 57 [Availability of Exhibits During Deliberations].

    However, if your recollection of the evidence does conflict with that of counsel or the court, you should consider whether your recollection may not be completely accurate in this regard. Should you have a question regarding the testimony, you may request that the portion of the testimony at issue be read back to you. [Alternatively, you may be provided with a transcript of the testimony in question.]

[Source: NCJIC.]

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 VOLUME 13 - CHAPTER 272

PRACTICE NOTE: The trial judge has a responsibility to correctly instruct the jury and limit argument to defenses supported by substantial evidence. (People v. Ponce (CA 1996) 44 CA4th 1380 [42 CR2d 422].) Hence, if either the defense or the prosecution argues a theory to the jury which is not supported by substantial evidence, the trial court, in its discretion, may instruct the jury that there is no evidence in support of such a theory. (Ibid.) However, as to matters of credibility, the trial court must be careful to not express its belief of the witnesses of one side or the other. (See NCJIC 284.1.7 [Readback Of Testimony: Initiated By Court Sua Sponte]; see also NCJIC 16.14.2 [Questions Of Witness By Judge]; see also NCJIC 16.14.2.3 [Judge Calling Witness: Cautionary Instruction]; see also NCJIC 16.14.3.8 [Judge Should Not Praise Prosecutor And/Or Prosecution Witnesses].)

    See also NCJIC  3.2.14 [Duty to Screen Out Factually Unsupported Theories].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

See Manual On Recurring Problems In Criminal Trials [1a. Right To Final Argument: General Principles].

See also Manual On Recurring Problems In Criminal Trials [2a. Control By Court].

See also Manual On Recurring Problems In Criminal Trials [3a. Time Limitations: General Principles].

See also A Manual On Jury Trial Procedures [3.19.1A. Closing Argument: In General].