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Birmingham Bar Association Bulletin

Closing Arguments Lloyd W. Gathings, Gathings Law “...Trials are legal combat, and not ‘a parlor social a air.’” 1 Mr. Justice Samuel A. Beatty Nowhere have these words rung more true than in closing arguments in both criminal and civil trials. It is the end of the trial, the swords have been drawn from their scabbards, and only one side will survive as the winner when the fi nal verdict is returned. Th e combatants don't always stay within the niceties of social and legal etiquette, as would be expected in "a parlor social aff air." It's worth considering a few general legal principles before looking at some of the more interesting things that have been said in closing arguments. Th e vast majority of Alabama appellate decisions regarding closing arguments are criminal decisions. More often than not, in both criminal cases and civil cases, the appellate court will affi rm the lower court on matters involving closing argument. Th ese decisions often fi nd that the arguments were legitimate inferences from the evidence, were harmless error, or were cured by instructions of the trial court.2 If you do not object to an improper closing argument and state the grounds for your objection, then the appellate court applies the strict standard of review requiring that the remarks were "'so grossly improper' and 'highly prejudicial' that their evil infl uence and eff ect were ineradicable from the jury's minds by proper admonition."3 If you object, state your grounds, and if the court sustains your objection and gives a proper curative instruction to the jury, then the appellate court will not generally fi nd reversible error. However, an instruction by the court that "what the lawyers say is not evidence" is not a proper curative instruction. "'In a case of improper argument where the trial judge overrules objection and fails to instruct the jury as to the impropriety with direction to disregard, the test upon appeal is not that the argument did unlawfully infl uence the jury, but whether it might have done so.'"4 Th e jury must be admonished "with immediate and strong action by the trial court instructing the jury that such argument was not correct and admonishing them not to consider it . . . ."5 If the jury is so admonished, "the test on motion for new trial and on appeal is whether the argument was so harmful and prejudicial that its infl uence was not or could not be eradicated by the action of the court."6 If the court gives the proper curative instruction, few statements will be deemed reversible error. In a civil case, reference to the defendant's wealth or insurance may be an exception. In a criminal case, the prosecutor's personal opinion that the defendant is guilty also is probably an exception. Generally, the more times the improper statements are repeated in the argument, the greater the chance of reversal. 7 It is generally improper to comment on the fact that another party did not call a particular witness to testify "'if the witness is equally accessible to both parties.'"8 However, equal accessibility is not limited to whether the witness can be subpoenaed for trial. A witness is not equally available if his testimony would be "friendly toward defendants and unfriendly toward plaintiff ."9 Arguing for the jurors to place themselves in the shoes of a party is generally 12 Birmingham Bar Association


Birmingham Bar Association Bulletin
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