Closing argument is an opportunity for each side in a trial to present their theory of the case after the evidence has been presented, and to attempt to persuade the jury that the evidence supports that side’s theory, and/or does not support the theory presented by the opposing side. However, attorneys making closing arguments are not allowed to just say anything they want. Their arguments must be made within the confines of rules governing attorney ethics and the conduct of trials. In the recent Tennessee criminal case of State v. Wheeler, W2013-02765-CCA-R3-CD (Tenn.Crim.App. 3-11-2015), the Court of Criminal Appeals reversed trial court convictions for forgery and attempted theft due the prosecutor’s improper statements during closing argument.

In the Wheeler case, the defendant was convicted after a jury trial of forgery and attempted theft for signing and attempting to pass an unauthorized check. The defendant’s theory was that she was not the person who attempted to pass the check. She claimed her purse and photo identification had been stolen and that someone else must have used her stolen identification to attempt to pass the check. She claimed she was home with her mother when crime occurred.

The defendant’s mother also testified to corroborate that the defendant’s license had been stolen. But she was not asked whether the defendant had been home with her when the crime occurred. Defense counsel had already informed the Court and the prosecutor that the defense did not intend to present alibi testimony.

Though both parties had agreed that no alibi evidence would be presented, the prosecutor nevertheless elected to ask the defendant on cross examination about where she was when the crime occurred and she answered that she was home with her mother. The prosecutor objected to the defendant’s mother being allowed to testify about an alibi because no alibi notice was provided. But then, in the prosecutor’s closing statement, the prosecutor argued the jury should not believe the defendant’s testimony that she was home with her mother because her mother, who testified, did not corroborate the alibi. Of course, the jury did not know that the reason the defendant’s mother was not asked about the alibi was because of the prosecutor’s objection to it.

The Court of Criminal Appeals found that the prosecutor’s comments about the lack of alibi testimony from the defendant’s mother were misleading. In addition, there were multiple incidents of the prosecutor seeming to personally vouch for the credibility of witnesses, which attorneys are not allowed to do. The written opinion lists the specific incidents of questionable comments by the prosecutor on the credibility of witnesses, and concludes there was “serious” and “blatant” prosecutorial misconduct in closing argument. The convictions were reversed and remanded for a new trial.

For more information on what might be proper in a closing argument in a criminal trial, contact The Lanzon Firm.