Atticus Finch knew how to make an effective argument. This is a scene from the legendary movie, To Kill A Mockingbird. Impermissible Arguments by Prosecutors Lead to Reversed Convictions By: Adam L. Bantner, II Because the U.S. Constitution requires a criminal defendant to be presumed innocent, that a defendant receive a fair trial, and that a defendant does not have to any burden to prove his own innocence, prosecutors have to be very careful in making their arguments to the jury. In closing argument, the attorney's role is to “assist the jury in analyzing, evaluating and applying the evidence.” Cardona v. State , 185 So. 3d 514, 519 (Fla. 2016) (quoting U.S. v. Morris , 568 F. 2d 396, 401 (5th Cir. 1978)). Comments made during closing argument that are intended to inject emotion and fear into the jury are outside the scope of a proper closing argument. Lewis v. State , 780 So. 2d 125, 129 (Fla. 3d DCA 2001); Garron v. State , 528 So. 2d 353, 359 (Fla. 1988). It is improper for an attorney to express a personal opinion about the credibility of a witness during closing argument. Johnson v. State , 801 So. 2d 141, 142 (Fla. 4th DCA 2001) (“It is equally 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.”). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Brinson v. State , 153 So. 3d 972 (Fla. 5th DCA 2015) (quoting Edwards v. State , 428 So. 2d 357, 359 (Fla. 3d DCA 1983). Should a prosecutor make such an argument, Courts apply the “Lopez Test” when determining whether prosecutorial comments merit a new trial. To warrant a new trial, the comments must either 1) deprive the defendant of a fair and impartial trial; 2) materially contribute to the conviction; 3) be so harmful or fundamentally tainted as to require a new trial; or 4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. Spencer v. State , 645 So. 2d 377, 383 (Fla. 1994) (citing Lopez v. State , 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990)). Morell v. State, Improper Burden Shifting In Morell v. State , 26 Fla. L. Weekly Supp. 883a (Fla. 17th Cir. Ct., 2018), Morell was charged with driving under the influence. He performed one field sobriety exercise, horizontal gaze nystagmus, but refused the other exercises and refused to provide a sample of his breath for testing. In closing arguments, the prosecutor focused her attention almost solely on the defendant's failure to provide the jury with additional evidence of his guilt. Her statements included: … defendant failed to provide what would be the best evidence in this case. … the defendant said, fine, I will choose not to give the ladies and gentlemen of the jury today the best evidence in this case, which would be his breath. … the State has proven that the only lack of evidence in this case comes from the defendant refusing to provide the breath sample to you all today. The court held that each of these statements improperly shifted the burden upon the defendant to provide evidence to the jury. As such, it amounted to fundamental error to require reversal of the conviction even without proper preservation of the errors by defense counsel. Alou v. State, Improper Vouching and Appeal to Passions of the Jury In another DUI case, the court reversed a conviction because a prosecutor made arguments that effected the defendant's ability to receive a fair trial. In Alou v. State , 26 Fla. L. Weekly Supp. 869a (Fla. 11th Cir. Ct., 2018), the prosecutor improperly vouched for the credibility of a law enforcement witness and improperly appealed to the sympathies and passions of the jury. The statements were: Officer Franco is not going to misrepresent the words of this Defendant. Then he almost hit a bus, a bright colored bus. Then he almost hit that bus, again. Members of the jury, what if he didn't miss? In this case, unlike in Morell, the defense attorney did his job by properly objecting to the offending statements and moving for a mistrial. While the court did sustain the objections, it never gave a curative instruction to the jury and it denied the motion for a mistrial. The Circuit Court, sitting in its appellate capacity, ruled that the trial court abused its discretion in denying the motion for a mistrial. As such, the verdict was reversed and the case was remanded to the trial court for a new trial.

Uncategorized Archives - Adam Bantner

Don’t Post Evidence on Facebook!!!

By: Adam L. Bantner, II Board Certified Criminal Trial Law Attorney It should go without saying, but you can do

Bantner Law2020-01-21T21:53:28+00:00September 23rd, 2019|Evidence, Trial, Uncategorized|0 Comments

Criminal Justice Legislative Update

Updates to Florida Criminal Justice Laws From 2019 Legislative Session By: Adam L. Bantner, II Board Certified Criminal Trial Attorney

Bantner Law2020-01-21T21:56:51+00:00June 17th, 2019|Crimes, Legislation, Uncategorized|0 Comments

Do I Have to Do Field Sobriety Exercises?

You Can Say, "No," to Field Sobriety Exercises This is the short version of the standard FSEs. The officer will

Bantner Law2019-06-10T18:09:31+00:00June 10th, 2019|DUI, Evidence, Search and Seizure, Uncategorized|0 Comments

How Do Trial Courts Still Get Restitution Wrong?

By: Adam L. Bantner, II Board Certified Criminal Trial Attorney Somehow, Florida courts continue to get restitution wrong. My guess

Bantner Law2019-04-29T20:00:34+00:00April 29th, 2019|Sentencing, Uncategorized|0 Comments

You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II Board Certified Criminal Trial Attorney While it's not always a smart move, legally speaking, you

Bantner Law2019-04-12T14:40:06+00:00April 12th, 2019|Uncategorized|0 Comments

You Can’t Say That!

Atticus Finch knew how to make an effective argument. This is a scene from the legendary movie, To Kill A

Bantner Law2019-03-18T17:37:57+00:00March 18th, 2019|Trial, Uncategorized|0 Comments

There’s a Right Way to Preserve a Juror Challenge

By: Adam L. Bantner, II, B.C.S. Jury selection is the beginning of your trial. Some believe that a case can

Bantner Law2019-02-19T15:52:13+00:00February 19th, 2019|Trial, Uncategorized|0 Comments

The Inevitable Discovery Doctrine

A room after a search, Russia, early 20th century. Found in the collection of the Russian State Film and Photo

Bantner Law2019-02-04T20:37:21+00:00February 4th, 2019|Search and Seizure, Uncategorized|0 Comments

Don’t Drive on the Wrong Side of the Road (Duh)

On January 18, 2019, the Second DCA issued a ground-breaking opinion that driving on the wrong side of the road

Bantner Law2019-01-22T21:01:20+00:00January 22nd, 2019|Uncategorized|0 Comments

Some Creative Lawyering to Find the Deep Pocket

By: Adam L. Bantner, II A well-honed skill of any successful plaintiff's attorney is the ability to find the money,

Bantner Law2019-01-06T04:30:14+00:00January 6th, 2019|Personal Injury, Uncategorized|0 Comments