Closing Arguments at Trial

Arguments that are grossly improper if they deny the Defendant Due Process of Law and extreme to such extent that a criminal trial of the Defendant is fundamentally unfair.

What Does Indicted Mean?

It does not matter whether the allegations against the accused are a felony or misdemeanor charge. Arguments of counsel, including those made on behalf of the State by the prosecutor, must not stray so far out-of-bounds to impede or otherwise serve to preclude the Defendant his or her right to a fair trial.

Unintentional misstatements of fact or understandings of evidence ordinarily do not rise to the level of reversible error. The NC Supreme Court does not “impose a perfection requirement” on legal professionals in court, including the attorneys and trial judge.

The Court is “ever mindful that parties are ‘entitled to a fair trial but not a perfect one.’” Lutwak v. United States, 344 U.S. 604, 619 (1953).

Improper remarks by legal counsel at trial may include things like:

• References to circumstances and events outside the admissible evidence
• Name Calling and Insults
• Disparaging the Character of the Defendant or Witnesses
• Calling a Witness or the Defendant a Liar
• Expressing Personal Opinion
• Drawing Personal Conclusions
• Appeals to passions and prejudices of the Jury
• Commenting of the Defendant’s decision not to testify
• Intruding on Constitutional Rights

Prior to deliberation, the Court provides information to the jury about the essential elements of the crime, what is necessary for the State to prove, burdens of proof, and other constitutional rights that affect the ability of the accused to receive a fair trial.

That is accomplished using the NC Criminal Pattern Jury Instructions or “PJI.”

One such instruction, relevant to misstatements of fact during closing arguments by counsel, is the admonition of the Court for jurors to “be guided exclusively by your own recollection” of the evidence.

In the event the jurors’ recollection of the evidence differs from that argued or supported by the attorneys during closing arguments, the jury is to rely on their own recollections of the evidence.

Jurors are read, often verbatim, relevant portions of the Pattern Jury Instructions both before and after closing arguments by the State and defense counsel.

Under the NC criminal laws, there is a presumption that jurors will follow the instructions of the Court, including the instructions, read consistent with the pattern jury instructions.

The Court of Appeals in North Carolina opines, in part:

“Trials are not carefully scripted productions.”

Except for gross or extreme impropriety in closing arguments the “[J]udge should not be thrust into the role of an advocate. . .” in the event of a perceived possible misstatement of the fact pattern when the Defense lawyer does not object.