Closing Argument Flashcards
What was the worst thing in closing argument?
The prosecutor saying he is guilty as a statement of fact.
How was the prosecutor expressing personal opinions?
The prosecutor said that “[i]t’s not based
on the truth;” or “[i]t’s not based on reality,” 5-ER-798, or “[h]e knew. . . . He is guilty,”10 5-ER-799. Calling Mr. Gonzalez’s theory of a drug trafficker using an unknowing courier “ridiculous.” ER776. United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002) (holding that, generally, “prosecutors’
arguments . . . should be phrased in such a manner that it is clear to the
jury that the prosecutor is summarizing evidence rather than inserting
personal knowledge and opinion into the case”).
At the very least you can’t show prejudice?
This Court recognized that closing argument matters. And when considered with the trial errors, that is enough to undermine confidence in the verdict. “Evidence matters; closing argument matters; statements from the prosecutor matter a great deal.” United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993).
But you have some leeway to question the defendant when it is a he-said-she-said, no?
Prosecutor’s can undermine a defendant’s credibility, and they can even suggest that they must be lying when their story is flatly contradicted by the government’s evidence. For example, if Mr. Gonzalez said that he did not know drugs were int he car, and a government agent testified that Mr. Gonzalez told him that drugs were int he car. But that is not what we have here. We have a defendant saying he didn’t know and the government attempting to provide inferential evidence that he did. That does not give the government license to call him a liar.
Doesn’t Tucker say that it is OK to call a defendant’s testimony a fabrication?
Again, when the evidence directly contradicts the defendant’s testimony. This testimony—contrasted with the evidence that Tucker and Alexander had recently moved into the apartment, and that Tucker was still living in the apartment—allowed the prosecutor to infer that Tucker lied in the state court hearing when he suggested that the personal effects and clothing in the master bedroom belonged to Alexander’s “new” boyfriend. United States v. Tucker, 641 F.3d 1110, 1121 (9th Cir. 2011)
What about Wright?
Wright actually cuts in Mr. Gonzalez’s favor. This Court held there that “the prosecutor’s repeated references to how he viewed the evidence were also improper. See id. at 1100 (“[P]rosecutors’ arguments not only must be based on facts in evidence, but should be phrased in such a manner that it is clear to the jury that the prosecutor is summarizing evidence rather than inserting personal knowledge and opinion into the case.”) United States v. Wright, 625 F.3d 583, 612 (9th Cir. 2010)
What about Cabrera?
The prosecutor’s statement was based on evidence submitted at trial. Evidence was presented that the car that Cabrera was driving displayed a license plate registered to a motor home, not the car that he was driving.
United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000)
What about Sayetsitty?
The same is true of the prosecution’s statement concerning defense counsel’s desire for a two-year autopsy; defense counsel had argued that the autopsy conducted was too quick to be reliable. Criticism of defense theories and tactics is a proper subject of closing argument
United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)
What are the worst things that he said?
: (1) He knew. That’s all. That’s all. He is guilty ER799; (2) “You’ve got to be kidding. This doesn’t make any sense because it’s all built on a house of cards. It’s not based on the facts. It’s not based on the truth. It’s not based on reality.” ER798 (3) “So you heard this story that is ridiculous on its face.” ER776
The prosecutor never said that blind mules never occur
But he did say that it was “not based on reality” to think that drug traffickers would pick up drugs from an abandoned car. ER-14. And that is something that happens.
