Failure to object to improper summation could be a factor in Connecticut habeas corpus cases. Learn more about the impact of these failures here.

The federal and state constitutional guarantee of effective assistance of counsel applies to closing argument, which, as part of the trial, is a critical stage of the proceedings. Cf. Herring v. New York, 422 U.S. 853, 859 (1975)(the closing argument of the defense contains a basic element of the adversary process and, thus, gets constitutionally protected under the Sixth and Fourteenth Amendments).

Closing Arguments

Closing argument—whether by the State or defense—must be limited to the facts in evidence, including appropriate inferences drawn the facts, and the application of the facts to the law of the case. Consequently, it is improper for counsel to misstate the facts, attribute testimony to a witness that was not provided, or refer to evidence outside the record. Also, the rule gets supported by the case law and various standards. See State v. Maguire, 310 Conn. 535, 552-55 (2013); State v. Skakel, 276 Conn. 663, 744-47, cert. denied, 549 U.S. 1030 (2006). In addition, ABA Standards For Criminal Justice, Prosecution Function (3rd Ed. 1993), Standard 3- 5.8 Argument to the Jury (“prosecutor should not intentionally misstate the evidence or mislead the jury”).

Then, consider Standard 3 -5.9 Facts outside the Record (“prosecutor should not intentionally refer to or argue on the basis of facts outside the record”). Defense Function (3rd Ed. 1993), Standard 4-7.7 Arguments to the Jury (“Defense counsel should not intentionally misstate the evidence or mislead the jury as to inferences it may draw”). Also see Standard 4- 7.8 Facts Outside the Record (“counsel should not intentionally refer to or argue on the basis of facts outside the record”).

In addition, ABA Standards For Criminal Justice, Discovery and Trial by Jury (3rd Ed. 1996), Standard 15-3.4 Opening Statement and Closing Argument, Commentary p. 201 (“Counsel must confine the [closing] argument to facts introduced in evidence through testimony of witnesses or other admitted exhibits, facts of common knowledge, and logical inferences based on evidence. To refer to facts not in the record, to misstate evidence, or to attribute to a witness testimony that was not given is improper”).

Emotions of the Jury

It is also improper for the prosecutor and defense counsel to strike at the emotions of the jury, to express personal opinions, and to denigrate the opposing party or his case. This rule is likewise supported by the case law and various standards. See State v. Maguire, 310 Conn. at 552-55; State v. Skakel, 276 Conn. at 744 -47. Also consider ABA Standards For Criminal Justice, Prosecution Function (3rd Ed. 1993), Standard 3-5.8 Argument to the Jury (“prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant” or “make arguments calculated to appeal to the prejudices of the jury”).

Then, consider Defense Function (3rd Ed. 1993), Standard 4- 7.7 Arguments to the Jury (“counsel should not express a personal belief or opinion in his or her client’s innocence or personal belief or opinion in the truth or falsity of any testimony or evidence” or “make arguments calculated to appeal to the prejudices of the jury”); ABA Standards for Criminal Justice, Discovery and Trial by Jury (3rd Ed. 1996), Standard 15-3.4 Opening Statement and Closing Argument, Commentary p. 202-03 (“It is improper for counsel to include remarks in…closing argument that are not relevant to the facts and issues of the case. In addition to diverting the jury’s attention from the merits of the case, such remarks can be highly prejudicial.

Impermissible comments include:…d. Emotional appeals to the jurors for sympathy or vengeance, to create fear for their personal safety…f. Personal remarks or opinions regarding the credibility of evidence presented, or what the outcome of the case should be.”); Rules Of Professional Conduct, Rule 3.4 Fairness to Opposing Party and Counsel (“A lawyer shall not…[i]n trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness,…or the guilt or innocence of an accused”).

An impermissible closing argument by the prosecution can impact the jury’s decision-making and, hence, the fairness of the trial, thus requiring reversal. See State v. Ancona, 270 Conn. 568, 593-94 (2004) (“[P]rosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments….” (citation omitted)). In addition, State v. Stevenson, 269 Conn. 563, 571 (2004)(“touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial”).

Prosecutorial Misconduct

A two-step analysis is used to decide claims of prosecutorial misconduct in summation. “The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; also (2) whether that misconduct deprived a defendant of his due process right to a fair trial.” (Citation omitted; internal quotation marks omitted) State v. Stevenson, 269 Conn. at 572. Then see accord Maguire, 310 Conn. at 552. Next, the second step, assuming it gets reached, requires the reviewing court to apply the factors set forth in State v. Williams, 204 Conn. 523, 540 (1987). See Stevenson, 269 Conn. at 572-75 (apply Williams factors, not Golding test, where prosecutorial misconduct claim is unpreserved); see also State v. Ancona, 270 Conn. at 595-96.

Also, the factors include, “the extent to which the misconduct was invited by defense conduct or argument…the severity of the misconduct…the frequency of the misconduct…the centrality of the misconduct to the critical issues in the case…the strength of the curative measures adopted…and the strength of the state’s case…” Stevenson, 269 Conn. at 573 (quoting State v. Williams, 204 Conn. at 540)); see Maguire, 310 Conn. at 560. In applying the factors, “all incidents of misconduct must be viewed in relation to one another and within the context of the entire trial.” Id. at 574.

Accordingly, counsel has a duty to object to any impermissible closing argument made by the prosecution, because such argument undermines the fairness of the trial and the reliability of the verdict. Also see State v. Ceballos, 266 Conn. 364, 414 (2003) because (It is the “responsibility of defense counsel…to object to perceived prosecutorial improprieties as they occur at trial…”).

Mistrial

In addition to an objection, counsel should consider moving for a mistrial pursuant to Practice Book § 42-43. So, if the motion is denied, counsel should consider requesting a curative instruction. Counsel should also consider moving the Court for an additional opportunity to address the jury pursuant to Practice Book § 42-35 or the Court’s inherent authority. See also, e.g. State v. Weinberg, 215 Conn. 231, 246-51 (1990)(court permitted defendant a second opportunity to address the jury to defuse risk of prejudice stemming from inappropriate spectator conduct).

In addition, any failure to object or seek other measures may undermine the defendant’s claim on appeal. Then see Maguire, 310 Conn. at 560-61 (“[T]he determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.”)(quoting Stevenson, 269 Conn. at 573).

Consequently, counsel’s failure to object (or to seek other measures) to improper closing argument by the prosecution will, in an appropriate case, constitute deficient performance under the Strickland standard. In addition see generally J. Burkoff & N. Burkoff, Ineffective Assistance Of Counsel (2012 Ed.), § 7:41. Accordingly, a timely objection (and, where appropriate, a request for other measures) should be made, as the failure to do so will rarely be deemed sound trial strategy.