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Improper Closing Arguments – Part 1 – Facts Not in Evidence

by William L. Pfeifer, Jr. on May 1, 2012

in Appeals

Improper closing arguments can provide a good basis for overturning a trial court verdict on appeal, if the issue has been properly preserved for appellate review. This is the first in a series of posts on the issue of improper closing arguments during trial. In Part 1 of this series, we take a look at a form of improper argument called arguing “facts not in evidence.” This refers to attorneys using their closing arguments to argue facts to the jury that were not presented during trial.

When an improper argument is made, “the test for review is not whether the comments influenced the jury, but whether they might have influenced the jury in arriving at it’s verdict.” Snyder v. State, 893 So. 2d 482, 543 (Ala. Crim. App. 2001). While attorneys are given a lot of room to argue reasonable inferences from the evidence, they may not argue a fact that is not supported by the evidence. Ex parte Washington, 507 So. 2d 1360, 1361 (Ala. 1986). As the Alabama Supreme Court stated in Rogers v. State, 157 So. 2d 13 (Ala. 1963), “Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof.”

While a proper objection to an improper closing argument can lay the groundwork for reversing a case on appeal, few trial lawyers ever make the objection. There is a general attitude among many trial attorneys that making an objection during your opponent’s closing argument makes you look bad to the jury, so they often let their opponents present completely improper closing arguments without raising an objection. This is usually a big mistake. The failure to make an objection to the improper argument waives the issue on appeal, unless it is a criminal case in which the defendant is sentenced to death. When a defendant is under a death sentence, the appellate courts will still consider the issue of whether closing arguments were improper even without an objection from trial counsel under the “plain error” rule. But in all other contexts, the failure to object is fatal to arguing the issue on appeal.

Do you need to appeal an Alabama case in which the prosecutor or opposing lawyer made improper closing arguments? Did your trial attorney preserve the issue for appellate review by objecting to the arguments? Contact our office to find out about your right to appeal and to discuss whether you have grounds for reversing a conviction or verdict over improper closing arguments. And if your attorney did not make an objection, remember that you may still have an opportunity to challenge the conviction through a Rule 32 petition.

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