>Object during closing?

Posted on April 2, 2009 by Joseph


A Massachusetts Appeals Court decision, which was just denied further appellate review, Commonwealth v. Rosa, 73 Mass. App. Ct. 540 (2009), reminds us that sometimes criminal defense attorneys need to object during the prosecution’s closing argument.

Traditionally, trial lawyers refrain from objecting during their opponent’s closing argument. I can think of two reasons for this. First, I suspect that this tendency is a holdover from the days when lawyers were considered just short of nobility. Flip through just about any Dickens book, and you will discover a culture in which attorneys were more concerned about professional courtliness than preserving their clients’ rights. The second reason is that closing arguments are simply not evidence. Since the closing argument does not appear on the record as actual evidence, lawyers often feel that there is no point in bothering with an objection.

This case, however, points to a situation where several errors were made by the prosecutor without objection from defense counsel. Though the court did not find the “substantial likelyhood of miscarriage of justice” required for a new trial, they did (in dicta) identify some categories of objectionable prosecutorial statements.

  1. Repeated references to the victim’s popular profession, unduly playing on the sympathies of the jurors: In this case, the prosecutor repeated several times that the victim of an Assault and Battery on a Public Employee was a firefighter. He made nineteen references to this fact. The court ruled that this was improper. Id. at 545

  2. Repeated references to the severity of the victim’s injuries, unduly playing on the sympathies of the jury: the court said,

    “The prosecutor’s repeated reference to the seriousness of the victim’s injuries also went too far in appealing to juror sympathy. His closing included statements that the defendant ‘crushed Lieutenant Loughlin into Engine No. 8’; ‘mauled . . . and drove over’ the victim; ‘crushed this firefighter’s pelvis’; ‘drove into Lieutenant Loughlin with so much power he pinned him between two vehicles [so] that buttons from his uniform and his clothing were wedged into that vehicle. Then [the defendant] leaves the scene leaving behind a firefighter lying on the cold, wet street. . . .’ He also said, ‘This firefighter ended up with injuries to his arms, to his wrist, to his legs, to his knees, to his pelvis. It took him over a year to walk again because this defendant slammed into him and then tried to flee the scene and he did flee the scene,’ and ‘[Y]ou have to imagine how much damage was done to that Lieutenant’s body as that SUV tore into him.'” Id.

  3. Statements regarding the reliability of a particular photo array identification technique: The prosecutor in this case claimed that the photo array technique applied was superior to other identification techniques. He never offered evidence to that effect. The court ruled that this was improper. Id. at 546-548

No doubt other cases in The Commonwealth offer additional categories of objectionable closing argument statements. This case, however, is a reminder that the days of Dickens are gone. If you’re defending the criminally accused, don’t give the prosecutor a pass when he crosses the line.