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.