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272.3 Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions

    272.3.1 Summation/Closing Argument Of Counsel: Discussion Of The Law
    272.3.2 Reading Case Law During Argument As Alternative To Refused Instruction
    272.3.3 Jury May Consider Summation/Closing Argument Of Counsel As To Meaning Of Instructions If Not Inconsistent With The Judge’s Instructions
    272.3.4 Is Summation/Closing Argument That Jury Should Utilize Common Dictionary Meaning Of A Term
    272.3.5 Admonition Regarding Improper Summation/Closing Argument on Term Contained In Instructions But Not Defined
    272.3.6 Reference To Outside Sources During Summation/Closing Argument
    272.3.7 Counsel Should Not Be Permitted To Argue Differing Views Of The Law
    272.3.8 Importance Of Objecting To Prosecutor Misstatement Of Legal Principles

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    272.3.1    Summation/Closing Argument Of Counsel: Discussion Of The Law

PRACTICE NOTE: Counsel is allowed to discuss the pertinent law and argue it to the jury. (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 450, pp. 997-999; see also Davis v. State (GA 1994) 443 SE2d 638, 640 [prosecutor permitted to discuss meaning of reasonable doubt instruction during argument]; Freels v. State (GA 1990) 394 SE2d 405, 407 [defense counsel has right to refer to applicable law as part of intelligent presentation of case]; see also People v. Glasco (IL 1993) 628 NE2d 781; 785 [trial court erred in precluding defense from arguing substance of accepted instruction regarding special scrutiny to be used when considering accomplice testimony]; see also In re Wagner (CA 1981) 119 CA3d 90, 113-14 [173 CR 766]; People v. Sudduth (CA 1966) 65 C2d 543, 548 [55 CR 393] [in court's discretion counsel may incorporate correct statements of the law into argument]; People v. Travis (CA 1954) 129 CA2d 29, 36-39 [276 P2d 193]; People v. Anderson (CA 1872) 44 C 65, 70-71.)

    However, even if it is permissible to argue the law counsel may not dispute the principles of law as stated by the trial judge, misstate the law, argue inapplicable law, or to refer to the penalty which may be imposed upon conviction.  (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 451 pg. 1007-1010; see also U.S. v. Lerch (9th Cir. 1993) 996 F2d 158, 162 [defense counsel precluded from defining reasonable doubt]; U.S. v. Fruth (7th Cir. 1994) 36 F3d 649, 651 [same]; Fountain v. State (AL 1991) 586 So2d 277, 280 [no right to define instructions during argument where trial court correctly instructed on legal principles applicable to facts of the case]; Robinson v. State (GA 1994) 449 SE2d 679, 680 [jury should receive law from court not from attorneys]; see also People v. Pennetti (NY 1992) 581 NYS2d 869, 870 [task of instructing jury is for the court and not the prosecutor]; State v. Harnois (RI 1994) 638 A2d 532, 534 [defense counsel has no right to define reasonable doubt in closing argument]; see also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 450, p. 1004 ["Counsel’s right to argue the law is limited to a discussion of the instructions given by the trial judge. [Citations.]"].)

    See also NCJIC 272.1 [Summation/Closing Argument: General Principles].

    See also NCJIC  272.1.1 [Right To Summation/Closing Argument Founded On Fundamental Federal Constitutional Rights].

    See also NCJIC  272.1.2 [Summation/Closing Argument: Jurors Should Listen Closely To The Arguments And Pay "Close Attention"].

    See also NCJIC  272.1.4 [Conflict Between Jury’s Recollection And Summation/Closing Argument As To Evidence: Jury May Ask For Readback].

    See also NCJIC  272.2 [Summation/Closing Argument: Right To Notice Of Instructions Before Argument].

    See also NCJIC  272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

Annotation, Counsel's Right In Criminal Case To Argue Law Or To Read Books To The Jury, 67 ALR2d 245.

See also 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 [3.19A. Closing Argument: In General].

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PRACTICE NOTE: If the court refuses a requested instruction, it may be appropriate to read the applicable case law to the jury during argument. (See NCJIC  272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instuctions]; see e.g., People v. Sudduth (CA 1966) 65 C2d 543, 548 [55 CR 393] [in court's discretion counsel may incorporate correct statements of the law into argument]; People v. Anderson (CA 1872) 44 C 65, 70-71; In re Wagner (CA 1981) 119 CA3d 90, 113-14 [173 CR 766] citing Witkin, Cal. Criminal Procedure (1963) Trial, § 467 at 474-75; People v. Travis (CA 1954) 129 CA2d 29, 36-39 [276 P2d 193]; see also Annotation, Counsel's Right In Criminal Case To Argue Law Or To Read Books To The Jury, 67 ALR2d 245.)

    For example, where the requested instruction is refused because it has been held to be included in another general instruction [e.g., lingering doubt is encompassed within general mitigation instruction (see People v. Musselwhite (CA 1998) 17 C4th 1216, 1247 [74 CR2d 212]), counsel should be permitted to so inform the jury during argument.

    A sample argument might be as follows:

    "The California Supreme Court has ruled that lingering doubt as to guilt is a mitigating factor which you may consider in deciding which penalty to impose. You have not been specifically instructed upon lingering doubt as a mitigating factor because the court has ruled that it is included in the general mitigation instruction. Therefore, the law requires you to read the general mitigation instruction to include lingering doubt as a potential mitigating factor which you should consider."

    Similarly, when a definition, clarification or amplification of an instruction is refused because it is covered by other instructions or the jurors' assumed general knowledge, counsel should be permitted to argue that the particular matter is a correct statement of the law but was not included in the instructions because the judge assumed the jury would know the definition or that it was covered by other instructions. (See NCJIC  276.5.1 [Limitation On Jurors' Use Of Common Sense]; see also NCJIC  276.5.4 [Instruction On Juror's Common Knowledge/Matters Of Common Knowledge And Science].)

    When such an approach is taken counsel may also wish to tell the jury that (1) the DA would have a right to object if the legal rules recited in argument were improper and (2) the instructions authorize the jury to consider counsel's statements concerning the law which do not conflict with the trial court's instructions. (See also 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].)

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 [3.19A. Closing Argument: In General].

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RATIONALE: Often a specific instruction is refused not because it is incorrect but because it has been held to be unnecessary. (E.g., the specific point is included in a more general instruction.) For example, the California Supreme Court has held that lingering doubt is encompassed within the general mitigation instruction. (See People v. Musselwhite (CA 1998) 17 C4th 1216, 1271 [74 CR2d 212].) Such holdings are based on the Court's assumption that the jury will glean the specific principle from the more general instruction. (Id. at 1272-73.) When a specific instruction request is denied on the assumption that it is covered by other more general instructions, counsel should be permitted to inform the jury about this assumption and have the jury instructed to accept counsel's argument on this point for as a correct statement of the law. 

POINTS AND AUTHORITIES: To the extent that the specific principle reflects a defense theory there is a state and federal due process right to affirmative instruction on the theory. (5th and 14th Amendments; see also U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (CA 1991) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (CA 1988) 45 C3d 1126, 1141-43 [248 CR 600].) If the court has denied specific instruction on a defense theory, the defendant should still have the right to argue this theory to the jury. Moreover, in reality jurors often have difficulty following understanding the instructions and thus there is a real danger that they will not glean the specific legal rule from the general instructions. (See NCJIC  303.1.5 [Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated]; see also NCJIC  303.12.2 [Instruction As To Meaning Of Life Imprisonment Without Parole]; see also NCJIC 5.1.3 [Jurors Are Prone To Misunderstand Jury Instructions].) Empirical studies have recognized that jurors may not adequately comprehend the jury instructions.

    Hence, the assumption that the jury will glean the specific defense theory from the more general instruction may not be valid. (See also NCJIC 250.4.1 [Defense Theory: Not Included In General Burden Of Proof Instruction].)

    Additionally, counsel should be allowed to recite legal rules during argument when appropriate. (See NCJIC  272.3.2 [Reading Case Law During Argument As Alternative To Refused Instruction].)

    Furthermore, there is no sound basis for precluding the jury from accepting and following specific principles of law raised by counsel which are correct statements of the law. "When the court expressly permits counsel to argue the legal meaning of an instruction, without ever instructing the jury which interpretation is correct, the arguments of counsel obviously take on significant importance. A lay jury is ill-equipped to determine which view of the law is correct. [Citations.]" ([NF] Payton v. Woodford (10/20/2003, 9th Cir. No. 00-99000, No. 99003) 346 F3d 1204, *31, n17; see also Griffin v. United States (91) 502 US 46, 59 [116 LEd2d 371; 112 SCt 466].)  In fact, many standard pattern instructions already implies that the jury may rely on counsel's argument. For example:

    If the attorneys have said anything concerning the law that conflicts with my instructions, you must follow my instructions. (See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 1.00, [Respective Duties Of Judy And Jury] ¶ 4 (West, 6th Ed. 1996); see also IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 201 [Role Of Judge And Jury] (Idaho Law Foundation, Inc., 1995); MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 3.11, [Statements Of Judge And Attorneys] ¶ 2, sent. 2 (West, 4th ed. 1999); Dinse, Berger, & Lane, VERMONT JURY INSTRUCTIONS - CIVIL & CRIMINAL 5.01, [Instruction: Opening Remarks-Responsibilities Of Court And Jury] ¶ 6. (Lexis, 1993).)

    The lawyers have talked about the law during their arguments. But if what they said is different from what I say, you must follow what I say. What I say about the law controls. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.02 [Juror’s Duties] ¶ 3 (1991).)

    In sum, fundamental notions of fair trial by jury and due process require that the defendant be allowed to assure that the jury understands any correct principle of law which may have a bearing on its verdict. If counsel is precluded from conveying this principle by specific instruction, then the jury should be informed to accept and follow counsel's recitation of the principle during argument.

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 [3.19A. Closing Argument: In General].

SAMPLE INSTRUCTION:

    If counsel argues that a legal rule is included in one of the instructions, you must accept and abide by that rule as a correct statement of the law unless it conflicts with the instructions or I sustain an objection to counsel's argument on that point. Thus even if there is no specific instruction on the rule argued by counsel you must treat it as the equivalent of an instruction to be considered, if applicable, along with all the other instructions in deciding the case.

[Source: NCJIC.]

CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a specific point has been rejected on the basis that the point is included in another more general instruction. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The sample instruction is intended to address this concern.

    However, such an instruction should be carefully evaluated because it may allow the jury to consider other statements in argument from either side in the same fashion. Hence, caution should be used to object to or preclude argument on any misstatements of the law by the District Attorney and/or cocounsel. (See NCJIC  272.3.5 [Admonition Regarding Improper Summation/Closing Argument On Term Contained In Instructions But Not Defined].)

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    272.3.4    Summation/Closing Argument That Jury Should Utilize Common Dictionary Meaning Of A Term

RATIONALE: If an instructional definition is refused because the term is presumed to be within the common understanding of the jury, then there should be no objection to counsel repeating the common definition in argument.

POINTS AND AUTHORITIES: There is generally no sua sponte duty to instruct the jury on the meaning of terms in common usage which are presumed to be within the understanding of persons of ordinary intelligence. (See [NF] U.S. v. Young (8/17/2006, 9th Cir. No. 05-30313) 2006 U.S. App. LEXIS 21060; People v. Ordonez (CA 1991) 226 CA3d 1207, 1229-30 [277 CR 382]; compare People v. Pitmon (CA 1985) 170 CA3d 38, 52 [216 CR 221] [sua sponte duty to define technical legal terms].)

    However, when the definition of a common term is requested by the defense in light of a theory of the defense the definition should be given. To the extent that the specific principle reflects a defense theory there is a state and federal right to affirmative instruction on the theory. (5th, 6th and 14th Amendments [due process, compulsory process, trial by jury]; see also NCJIC  250.1 [Grounds For Instruction On Defense Theory];  U.S. v. Sotelo-Murillo (9th Cir. 1989) 887 F2d 176, 178-79; U.S. v. Lesina (9th Cir. 1987) 833 F2d 156, 159-60; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201; People v. Saille (CA 1991) 54 C3d 1103, 1120 [2 CR2d 364]; People v. Wharton (CA 1991) 53 C3d 522, 570-72 [280 CR 631]; People v. Wright (CA 1988) 45 C3d 1126, 1141-43 [248 CR 600].)

    On the other hand, if specific definition is refused, counsel should be permitted to read the common dictionary definition to the jury during argument and have the jury instructed to abide by that definition. Such an instruction is necessary because:

    1.     In reality jurors often have difficulty understanding the instructions and thus, notwithstanding the presumption that the jurors will correctly understand, there is a real danger that they will not. Empirical studies have recognized that jurors may not adequately comprehend the jury instructions. (See NCJIC 5.1.6 [Empirical Challenge To Confusing Jury Instruction Language]; see also NCJIC  303.12.2 [Instruction As To Meaning Of Life Imprisonment Without Parole]; see also NCJIC 303.1.5 [Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated].)

    2.     It is established that counsel may recite legal rules during argument when appropriate. (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions].)

    3.     There is no sound basis for precluding counsel from providing the jury with a definition which is proper and presumed to be within its understanding. 

    In sum, fundamental notions of fair trial by jury and due process require that the defendant be allowed to assure that the jury understands any correct definition of material terms which may have a bearing on its verdict. If counsel is precluded from conveying this principle by specific instruction, then the jury should be informed to accept and follow counsel's recitation of the definition during argument.

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 [3.19A. Closing Argument: In General].

SAMPLE INSTRUCTION:

    A definition of the term _______ has not been included in these instructions because you are to use the common dictionary meaning of it.

    If counsel provides you with a definition of the term, you may rely on that definition unless it conflicts with the instructions or I sustain an objection to counsel's definition.

[Source: NCJIC.]

CAVEAT: This instruction is intended to address the situation where a defense requested instruction on a definition has been rejected on the basis that the definition is presumed to be within the common understanding of the jurors. In such situation counsel should be permitted to argue the point, but the jury may not give such argument the same stature as an instruction from the court. The above instruction is intended to address this concern.

    See also NCJIC 272.3.5 [Admonition Regarding Improper Summation/Closing Argument On Term Contained In Instructions But Not Defined].

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RATIONALE: When common terms are not defined, the jury may accept erroneous or misleading definitions offered by counsel. Hence, the jury should be informed that it may request clarification of undefined terms which it does not understand.

POINTS AND AUTHORITIES: Most jurisdictions impose no obligation upon the court to define "terms which have an ordinary or common meaning." (See U.S. v. Hernandez-Escarsega (9th Cir. 1989) 886 F2d 1560, 1571; NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108, committee commentary [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998); see also NCJIC 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].) However, this "may result in an erroneous or misleading argument, because counsel may vary the law of the case simply by arguing that a word or phrase has a different meaning." (NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108, committee commentary [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998).) "If the jury is not given a definition, it is liable to accept erroneous arguments of counsel as to the meaning of disputed words or phrase." (Ibid.) "When the court expressly permits counsel to argue the legal meaning of an instruction, without ever instructing the jury which interpretation is correct, the arguments of counsel obviously take on significant importance. A lay jury is ill-equipped to determine which view of the law is correct. [Citations.]"  ( [NF] Payton v. Woodford (10/20/2003, 9th Cir. No. 00-99000, No. 99003) 346 F3d 1204, *31, n17; see also Griffin v. United States (91) 502 US 46. 59 [116 LEd2d 371; 112 SCt 466]; U.S. v. Morris (2nd Cir. 1991) 928 F2d 504; U.S. v. Chenault (5th Cir. 1988) 844 F2d 1124, 1131; compare Perry v. McCaughtry (7th Cir. 2002) 308 F3d 682, 694 [lay person would not have understood technical meaning of the term "causes"].)  The sample instruction below deals with this problem by inviting the jury to request a definition of terms it may not fully understand.

    See also 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].

CAVEAT: All of this highlights the importance of preparing accurate definitional statements for use as jury instruction requests or argument and closely scrutinizing opposing [and codefendants] counsel’s argument for possible misstatements in defining the terms in the instructions. (See generally 23 Corpus Juris Secundum, Criminal Law §1116; see also [NF] Payton v. Woodford, supra [relief granted because, inter alia, defense counsel objected to prosecutor's legal misstatements].) The assumption that the jury will properly understand the meaning of common terms may not always be valid.

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 [3.19A. Closing Argument: In General].

SAMPLE INSTRUCTION:

    The following [term]  ________ <insert undefined term> [phrase] ________ <insert undefined phrase> has not been defined because definition was not considered necessary.  

    However, if any juror has a question as to the meaning of the [term] [phrase] that juror may make a written request for definition. 

[See NCJIC 16.2.4.3 [Any Juror May Communicate With The Court At Any Time]; cf. NEW MEXICO UNIFORM JURY INSTRUCTIONS - CRIMINAL, UJI Criminal 14-108 [Explanation; Closing Argument; Improper Argument On Meaning Of Words Contained In Instructions But Not Defined] (Lexis, 1998).]

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    272.3.6    Reference To Outside Sources During Summation/Closing Argument

PRACTICE NOTE: Although the trial judge should take "a liberal posture toward counsel's right to argue her case as eloquently and persuasively as possible," the court retains discretion over whether counsel may read to the jury from material outside of the record. (People v. Palmer (CA 1984) 154 CA3d 79, 89 fn 9 [203 CR 474]; see also People v. Farmer (CA 1989) 47 C3d 888, 921 [254 CR 508] [court refused to find error because counsel did not show the article to the court before arguing from it]; People v. London (CA 1988) 206 CA3d 896, 908 [254 CR 59]; People v. Wes (CA 1983) 139 CA3d 606, 610 [189 CR 36]; Lax v. State (IN 1981) 414 NE2d 555, 557 [trial court did not abuse its discretion in refusing to permit defendant's trial counsel to quote from United States Supreme Court opinion and legal article during closing argument]; Chambless v. State (TX 1906) 94 SW 220, 220 [whether or not counsel should be allowed to read a decision from a report rests largely in the discretion of the trial court; Hudman v. State (OK 1949) 205 P2d 1175, 1181 [trial court should proceed with great caution in allowing counsel to read articles from magazine to jury, since the reading of such matter might constitute an improper admission of evidence outside the record].)

    It has been held that reference may be made to matters not in evidence that are "judicially noticed ... common knowledge, or are illustrations drawn from common experience, history or literature." (People v. Woodson (CA 1964) 231 CA2d 10, 16 [41 CR 487]; see also People v. Mendoza (CA 1974) 37 CA3d 717, 725 [112 CR 565] [counsel permitted to refer to -- but not read from -- articles about false child molestation charges]; but see People v. Love (CA 1961) 56 C2d 720, 729-30 [16 CR 777] [prosecutor not allowed to say it's "a known fact"].)

    It has also been held that counsel may properly read from court opinions, books, or newspaper and magazine articles if "the reading material states proper argument in language counsel feels is better than his own." (See People v. Pangelina (CA 1984) 153 CA3d 1, 9 [199 CR 916]; People v. Guzman (CA 1975) 47 CA3d 380, 392 [121 CR 69]; People v. Travis (CA 1954) 129 CA2d 29, 37 [276 P2d 193]; but see People v. Williamson (CA 1977) 71 CA3d 206, 216 [139 CR 222] [counsel not allowed to read "Scientific American" article on eyewitness identification]; see also NCJIC 272.3.2 [Reading Case Law During Argument As Alternative To Refused Instruction].)

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 A Manual On Jury Trial Procedures [3.19A. Closing Argument: In General].

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PRACTICE NOTE: "It is the trial court's duty to explain the law to the jury, not to place upon the jury the impossible burden of deciding which of two inconsistent views of the law is correct. The jurors in this case were laypersons; presumably they were unfamiliar with the legislative history of factor (k) or with cases interpreting the Eighth Amendment. Thus, they were totally unequipped to decide whether the prosecutor or defense counsel had correctly explained to them which evidence they were entitled to consider in deciding whether defendant should live or die. [Citing and quoting dissenting opinion of Kennard, J. in People v. Payton (92) 839 P2d 1035, 1057]." ([NF] Payton v. Woodford (10/20/2003, 9th Cir. No. 00-99000, No. 99003) 346 F3d 1204, *33.)

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].

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PRACTICE NOTE: See [NF] Payton v. Woodford (10/20/2003, 9th Cir. No. 00-99000, No. 99003) 346 F3d 1204, *31, n17 ["When the court expressly permits counsel to argue the legal meaning of an instruction, without ever instructing the jury which interpretation is correct, the arguments of counsel obviously take on significant importance. A lay jury is ill-equipped to determine which view of the law is correct. [Citations.]"]; cf., People v. Yeoman (CA 2003) 31 C4th 93, 153 [court concludes that jury considered specific mitigating evidence because counsel told the jury "without contradiction" that the evidence was relevant].)

See generally NCJIC 305.19.9.2 [Summation/Closing Argument].