Crafting a persuasive closing argument in a criminal trial is as much knowing what not to say as it is knowing what to say or how to say it.
Below you’ll find closing argument examples of what not to say in a closing argument. These examples were pulled right out the Illinois criminal case law.
A Sling Blade Quote And Prosecutor Goes All Out In A Shaken Baby Case
People v. Holmon, 2019 IL App (5th) 160207 (August). Episode 712 (Duration 21:49) (Prosecutor gets a little carried away in closing arguments, even brings up Sling Blade.)
Comments On The State’s Burden
The ASA went on to discuss the State’s burden of proving the defendant guilty. She reminded jurors that they were told during jury selection that the State had the burden of proving the defendant guilty beyond a reasonable doubt. She stated, “And that is absolutely right.”
She then argued that the State had done its job and proven the defendant guilty.
“When he walked into this room, he was presumed innocent, and he was presumed innocent throughout the entire trial. That is correct. That is his right. Not today. He’s been proven guilty.”
Ruling By The Court
Although it was appropriate and permissible for the ASA to argue that the State had met its burden of proving the defendant guilty, it was not appropriate for her to say, “Not today.”
Because that comment told jurors that the defendant would no longer enjoy the presumption of innocence during their deliberations, the comment misstated the law and was therefore improper.
Comments About Defense Counsel
Counsel for the state said,
“But for people who came in here and told you that they don’t have to do anything, they sure did throw a bunch of crap up on the wall for you to grasp on to.”
She then recounted the multiple theories offered by the defense to explain the baby’s death. She told jurors,
“That is them trying to distract you from the facts of this case, the meat and potatoes of this case, which is three doctors that come in here and say, I saw him; he was abused; he was beaten to death.”
She began her rebuttal by stating,
“Everything they just said totally means something if you get an instruction from the trial judge that when you enter the deliberation room, you are entering the Twilight Zone. Because it’s a bunch of crap, and everybody in the room knows it.”
Ruling By The Court
It is, of course, blatantly improper for a prosecutor to accuse defense counsel of fabricating a defense. It is also improper to accuse defense counsel of “attempting to create reasonable doubt by confusion, misrepresentation, or deception.” People v. Gonzalez, 388 Ill. App. 3d 566, 590 (2008).
However, prosecutors may comment on the credibility of the defendant and the persuasiveness of the defense theory of the case. Such comments must be supported by the evidence.
“The crap on wall” comment was proper because it was quickly followed up with a discussion focusing on the inconsistent explanations offered by the defense for Jasean’s injuries, including the statements the defendant himself gave to police.
The remainder of the remarks the defendant claims disparaged his attorneys were more problematic. Stating that defense counsel’s argument would only make sense in the Twilight Zone because it was “a bunch of crap, and everybody in the room knows it” certainly seems to imply that the defendant’s attorneys put forth an argument they knew to be false.
Moreover, the ASA followed this comment almost immediately by telling jurors that she was ashamed to be an attorney because of what defense counsel argued, a comment we find to be particularly egregious.
Considering these statements in this context, we find that they were all improper.
Portraying Herself As A Champion Of The Victim
The ASA emphasized that the baby was injured from head to toe. She argued:
“Somebody that does the autopsy tells you about those injuries and his cause of death. And lawyers can get up and say it was a misdiagnosis…I’ve never in my life said that I’m ashamed to be a lawyer. Because I’m proud to represent little boys like Jasean. But I’m ashamed right now. I’m ashamed about everything that happened this week. That they even can stand up and say that to you.”
Ruling By The Court
Court said it was improper for the prosecutor to paint herself as the solitary figure left to champion the deceased. But it was an isolated comment and not a theme.
Disparaging The Defense Expert Witness
When talking about the defendant’s expert the ASA argued:
“The other witness you heard from is Dr. Thomas Young. Their witness. That’s quite a story. That is that Jasean just stopped breathing and Tommie was doing some pretty rough CPR on him and that caused his injuries. I don’t even have a better word for his testimony than it’s a joke.”
The ASA argued that the defense expert was not credible for three reasons:
1) He was the only medical witness who formed an opinion without seeing the body.
2) He was paid by the defendant, and
>3) He relied heavily on the account of events given by the defendant.
Emphasizing the last of these three reasons, the ASA reminded jurors of Dr. Young’s testimony that he relied on the defendant’s statements because he felt that the best information available to him was information provided by an eyewitness. The ASA acknowledged that
“In a general term, yes, that’s true.”
She went on to argue, however, that typically “the only eyewitnesses to murders are murderers.” She then stated,
“If what Dr. Young says is true, then we’ve all just learned a great lesson on how to commit a perfect murder; make sure nobody is watching but you, find your victim, kill them, round up a few thousand bucks, and call Dr. Young.”
She further argued,
“The only question Dr. Young wasn’t asked, that I submit to you we all probably want to know the answer to, is how does he sleep at night?”
One of the ASA’s final statements about the defense expert was that,
“Dr. Young had everything he needs to know to tell you the truth. Man, if that guy knows everything he needs to know to tell you the truth, we’re all in trouble. For an extra seven thousand dollars, he probably would have come in here and told you I did it.”
Ruling By The Court
Much of the ASA commentary focused on valid reasons for jurors to find Dr. Young’s testimony not to be credible. The court said referring to the expert’s testimony as “ridiculous” and a “joke” did not stray beyond the bound of propriety.
But she went too far with comment about committing the perfect murder and paying the doctor to say she had committed the murder, and she suggested that he should have been asked how he sleeps at night.
We believe these remarks went well beyond the bounds of permissible argument.
Inflamed The Passions Of The Jurors
At one point the ASA went on to address defense counsel’s argument about the evidence that the police union paid for the baby’s funeral. She stated,
“It’s the police’s fault. They paid for the boy’s funeral. Shame on them that they didn’t want this kid in a morgue in a wooden box for the rest of his existence.”
Next, the ASA responded to defense counsel’s argument that the police, prosecutors, and pathologist were all working together. She asked jurors,
“Hey, if someone in your family was murdered… if your child is murdered, wouldn’t you want the prosecutors and the pathologists and the police to be working together to find out who did it?…Don’t you want that to happen if that’s somebody in your family?”
The ASA then reminded jurors that they had been instructed not to discuss the case with their friends and family members. However, she told them,
“Tonight you can. When you reach a verdict, you can. When you go home, you can tell your spouses and your family and your children—”
Defense counsel objected, again arguing that the comment was improper personalization. The court sustained the objection, but she did not move on to other topics. Instead, she argued:
“After you can talk to your family about the case or if you’re going to think about the facts of this case and relay what happens if you find the defendant not guilty, what went on in the trial? Well, we saw this dead baby. He was bruised from head to toe. It was really bad. A few doctors came in; worst case of child abuse they’ve ever seen. Cop said it was the worst they’ve ever seen. Baby was healthy until then. And it was real bad. So did you convict him? Nope.”
Defense counsel objected. The court sustained the objection and told jurors to disregard the comments. This time, the ASA did move on to other topics. Eventually, she argued as follows:
“Ladies and gentlemen, this case is incredibly clear. Jasean was left with someone who was supposed to take care of him. He was an innocent child, as all children are innocent. When he was left alone with the defendant, he was murdered. We, as a society, are obligated to protect our children. Much as it takes a village to raise a child—.”
Defense counsel interjected, stating, “Your Honor, I’m going to object, same, personalization.” The court sustained the objection, but the ASA continued to argue the same theme. She told jurors,
“Jasean was not taken care of by the person who was supposed to watch after him. He was murdered by him.”
The Sling Blade Reference
The ASA then began to discuss a Billy Bob Thornton movie called Sling Blade. She explained that Billy Bob Thornton’s character in the movie was a severely developmentally 12 delayed adult who befriended a 12-year-old boy.
She told jurors that when the 12-year-old boy’s mother began dating someone, it became apparent to Billy Bob Thornton’s character that the new boyfriend was beating his young friend. She continued,
“And Billy Bob Thornton, being developmentally delayed, he predictably winds up killing mom’s boyfriend—And at the end, when he knows that he is going to go to prison for it, he says, ‘I don’t think that bad stuff ought to happen to children. I think that the bad stuff ought to be saved for the adults.’ Well, so do I.”
Ruling By The Court
Although it was reasonable for the prosecution to challenge defense counsel’s accusation of bias, we do not believe it was proper to argue that Jasean’s body would have remained in a wooden box in the morgue had the police union not paid for his funeral. The comment served no purpose other than to arouse the sympathy of the jurors. We find the comment to be improper.
In regards to the Sling Blade comment. Prosecutors may comment on the evils of the crime at issue. However, because the ASA also talked about the Billy Bob Thornton character “predictably” killing the mother’s abusive boyfriend, the comment can also be read as a subtle appeal to jurors to avenge the death of the baby victim. Such appeals to the emotions of jurors are, of course, improper. The court found the potential for prejudice from this comment to be quite minimal.
We reach this conclusion largely because the suggestion that jurors should exact vengeance on the defendant is so subtle and indirect that it was likely missed by many jurors. It is also worth noting that many of the jurors were likely unfamiliar with the movie Sling Blade, which was released 20 years earlier.
But…the court was far more troubled by the remainder of the remarks challenged by the defendant in support of his claim that the ASA “played the jury’s emotions like a fiddle.”
We find all of these comments—particularly the last where she told the jury to consider what they’d tell their family—to be highly improper. However, the court minimized the potential for prejudice by sustaining objections.
No Reversal But With A Closer Case There May Have Been
Although the conviction was sustained the court noted that the result would have been different had there been any room for doubt of the defendant’s guilt.
It is blatantly improper for a prosecutor to urge jurors to find a defendant guilty so that they will not be ashamed to go home and tell their family members that they voted to acquit. The ASA not only made that argument, but she continued to make that argument after the court sustained an objection to it.
We likewise find The ASA’s argument that defense counsel’s conduct made her “ashamed to be a lawyer” to be particularly egregious.
Prosecution Asks The Jury If There Heart Is Not Broken For That Women
People v. Thompson, 2016 IL App (1st) 133648 (March). Episode 164 (Duration 5:47)
This was a drive by shooting.
The state’s “victim” lost her son and her nephew was injured. The prosecutor returned to the same theme again and again. This being the dead boy’s mother’s emotions and loss of her son.
What They Said
The State began its opening statement by focusing on the mother/aunt’s experience of the crime: how she would…
“…never forget the sound of those bullets” and “the voice of her 15 year old nephew. Auntie, I’ve been hit.”
The State asked,
“What could be worse than witnessing your 15 year old nephew being shot, racing him to the hospital praying all the way that he doesn’t die?…her own son had been shot by that spray of bullets. Her nephew would be lucky enough to live to tell about that bloody day. Her son wouldn’t be so lucky.”
In rebuttal the state said:
“Is there any heart in this courtroom that wasn’t breaking for that woman as she was on the stand? Lost her son. Saw her nephew being shot. Is there anyone’s heart that does not break for that woman? Other than his maybe. She has been through hell.”
Ruling By The Court
The reviewing court said this was not like People v. Blue, where the prosecution combined reminders to the jury of the pain endured by the victim’s family with a wealth of extraneous, nonprobative evidence that served “only one purpose, namely, to highlight the poignancy of the [victim’s] family’s loss and to suggest to the jury that the family’s pain could be alleviated by a guilty verdict.”
Nevertheless, the reviewing court did disapprove of the prosecution’s harping on the mother’s emotional state as a mother who had lost her child and its attempt to link the victim to the Iraq War.
These remarks relied on questionable advocacy, but did not rise to the level of clear and obvious error.
Inartful Example Used To Explain Accountability
People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28)
Prosecutor used an inartful example to illustrate accountability. Defendant was the driver when 2 other men got out of the car and shot up a rival gang members’ car. The victim died at the scene.
In attempting to explain accountability the prosecutor said:
“Now, we recognize this concept every day and we probably don’t even think about it during lawful activities. For example, if you go to JC Penney’s and you want to buy blue jeans and you go into the store and there’s a sales clerk walking by and you stop her and say, ‘Excuse me. Where are your blue jeans?’ And she says, ‘Oh, they’re on the back wall.’ So you go to the back wall, you pick out your Levis, and you go to the cash register and another woman rings you out. Now, the question is who sold you the jeans? Was it JC Penney, was it Levi Strauss, was it the salesperson who pointed you to the back wall, or the salesperson who took your money? Well, in truth they all are responsible for selling you the jeans because they all facilitated the sale. We also see this that we don’t need to see an expressed agreement to know that there was a plan.”
The prosecutor continued:
“Again, if you’re walking along the sidewalk next to a park and you watch a car pull up, there’s a parent in the front seat and two children get out and run and start playing in the park, you know that there was a common plan to go to the park between those three people. You know that it existed before they arrived at the park. They decided sometime to go to the park. They got in the car and drove to the park. That plan existed before they got to that park, and you have no evidence of an expressed agreement to go to the park, but you have no problem with the concept that the parents are responsible for the children being at the park because they facilitated that transaction. You don’t need an expressed agreement. You can tell by the circumstances that there was an agreement to go to the park.”
Ruling By The Court
These examples, in and of themselves, failed to provide complete and accurate representations of the law of accountability. Neither scenario mentioned any sort of criminal activity.
Of course, one cannot be held criminally accountable for another’s actions in the absence of a crime. The examples also failed to illustrate that a defendant is not accountable for another’s conduct unless the defendant acts with the intention of promoting or facilitating the commission of an offense. 720 ILCS 5/5-2(c).
Moreover, the park example did a poor job of illustrating the supposed common plan among the occupants of the vehicle.
The prosecutor asserted that the children, who were of unspecified ages, must have planned in advance to go to the park simply because their parent ended up taking them there. That is not necessarily the case. What if the parent did not tell the children in advance that they were going to the park? What if the parent did not form any plan to take the children to the park until he or she happened to pass the park on the way to a different destination?
Additionally, as defendant correctly notes, driving a person to a destination does not in itself make the driver legally accountable for the passenger’s acts.
Defense Counter Example-
Furthermore, defense counsel in his closing argument specifically informed the jury of some of the problems with the prosecutor’s park example:
“Now, when we talk about—when he talks about his analogies, he talks about, well, when you go to a park and two kids get out of the car and they run to the park, you know there was an agreement to go to the park. Okay. When those kids start getting in a fight with somebody else there, the parents did not agree for that fight. The parents did not intend for that fight. The parents did not plan for that fight. They are not accountable for that fight. Merely getting the kids to the park or merely getting these people to this area is not accountability. It is not guilty and it is not beyond a reasonable doubt.”
Inartful, but no plain error here.
Rape Conviction Reversed Because The Prosecution Crossed Many Lines
People v. Mpulamasaka, 2016 IL App (2d) 130703 (January). Episode 127 (Duration 15:34)
The State’s theory was that the Defendant committed a forcible rape against a mentally disabled women.
When the facts in the case did not demonstrate that the victim was handicapped the trial judge issued a directed verdict on the count that alleged the victim was unable to grant consent.
This did not stop the prosecution from constantly arguing that the Defendant took advantage of a mentally disabled victim.
The State proceeded to argue these points to the jury…
- The State used evidence admitted for one purpose, ability to consent, to establish the element of force.
- The State knew that it had failed to establish that the victim was unable to consent and that defendant knew as much, yet argued repeatedly that the jury should consider the victim’s “disability” on the issue of force in that defendant “manipulated” her.
- During its closing and rebuttal arguments, the State made 21 direct references to the victim’s intellectual limitations.
- The prosecutors used the victim’s learning disability to confuse the jury on the issue of consent.
- The State depicted defendant as a “predator” who took “a piece of meat” home with him.
- During its rebuttal argument, it argued that the Defendant’s expert “was at the rent-a-doctor agency sipping a latte” and that he sold his integrity “for three pieces of silver.”
- At the same time, the State misstated their own expert’s testimony, arguing that their doctor “told you point blank, she didn’t say it’s likely, she said this was as a result of a violent sexual assault, point blank.” Unfortunately, this was not exactly the doctor’s testimony.
- By arguing repeatedly, with no evidentiary support, that the victim’s cross-examination answers were not “her own words,” the State violated defendant’s right to confront witnesses.
- The most troubling aspect of the ASA’s conduct was leaving the podium and sitting in the witness chair to argue the victim’s credibility and courage and then discussing defendant’s credibility.
- The State wrapped up its rebuttal with a final appeal to sympathy, calling defendant a “bully” who took advantage of the “weakest amongst us.”
- Overall, the State served only to inflame the passions of the jury and constructed a completely emotional appeal which ignored the facts in the case.
Ruling By The Court
This is how the prosecution defended its closing argument in this rape case:
“It’s okay to walk the line as long as you don’t cross that line, as long as you’re doing everything ethically and in good faith.”
However, this mindset was combined with a willful non acceptance of the facts in the case. The reviewing court quickly reversed and cautioned that trial courts have a responsibility to ensure a fair trial for both sides.
It is the trial court’s duty to maintain order in the courtroom. Among other things, the trial court here should not have allowed the prosecutor to argue from the witness stand.
A Little Witness Vouching Can’t Hurt Anything
People v. Williams, 2015 IL App (1st) 122745 (March). Episode 067 (Duration 16:28)
The case involved a drive by shooting where the state had a “flipper” on the stand. In fact, it was the driver. Defendant and another passenger opened fire on a rival gang member. Defendant said he was in the car but he was high and asleep when the driver and the passenger opened fire.
This is What the Prosecutor Said in Closing Arguments
This is what the prosecutor said:
“When a gang member comes before us and is charged with an offense, we don’t just take everything he says for truth immediately, we check it out. And that’s why in January 2010 when [The Flipper] came over to my office and spoke to me with his attorney and I was with the gang specialist, we [took] everything he said and we checked it out, * * * We go over it and we get records from the phone companies and that’s why we go over and we go to the FBI and say help us with this, tell us what happened here, * * * We corroborate. We don’t just put– and take the word of anyone….we check it out.” ¶ 9.
Ruling By The Court
The prosecutor’s vouching for the credibility of witnesses poses two dangers:
(1) Such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and
(2) The prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence. See People v. Townsend, 136 Ill. App. 3d 385, 402 (1985) (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)). ¶ 13.
The prosecutor committed error with his argument. “We checked it out” combined with the references to the FBI suggested there were other reasons to believe this guy. The message that the prosecutor sent to the jury here suggested that the State’s Attorney would not put an untruthful witness on the stand. That goes even further than the prosecutor’s opinion. The prosecutor explicitly told the jury that the flipper’s credibility had already been assessed before he took the stand. The prosecutor urged the jury to believe their witness over the defendant because of the government’s verification of their witness’s version of events.
It was a close case so the conviction was reversed.