Improper Argument: Skewing Jury Decisionmaking

Improper argu­ment is a com­mon form of pros­e­cu­to­r­i­al mis­con­duct; how­ev­er, it often goes unreme­died. Improper argu­ment refers to any­thing the pros­e­cu­tor says dur­ing open­ing or clos­ing that vio­lates the Constitution, state or fed­er­al law, or court rules that could prej­u­dice the defen­dant. Improper argu­ment is even more egre­gious con­sid­er­ing it usu­al­ly occurs dur­ing the open­ing or clos­ing argu­ments, which lawyers painstak­ing­ly pre­pare for. Prosecutors have the floor to them­selves, usu­al­ly with­out inter­rup­tion or sur­pris­es, and they choose to make argu­ments that mis­state facts or are for the sole pur­pose of inflam­ing the jury. 

Often, courts pro­vide no rem­e­dy for improp­er argu­ment, dis­miss­ing it as ora­tor­i­cal flair, or harm­less error. Many instances of improp­er argu­ment, how­ev­er, tap into sub­con­scious prej­u­dices and beliefs, and the effects on a jury are dif­fi­cult to quantify. 

Improper argu­ment can be dif­fi­cult to appeal because of pro­ce­dur­al bars. In most cas­es, chal­lenges to improp­er argu­ments may only be heard on appeal if they were object­ed to at tri­al. However, many argu­ments may have not been object­ed for to avoid irri­tat­ing the jury or judge or stop­ping the flow of the pro­ceed­ing or because it has become clear that objec­tions would not be sus­tained. Objections may also be missed due to ineffective counsel.

Some gen­er­al class­es of improp­er pros­e­cu­to­r­i­al argu­ment are: vouch­ing for the cred­i­bil­i­ty of wit­ness­es; argu­ing facts not in evi­dence; inflam­ma­to­ry argu­ments such as direct insults toward the defen­dant or invok­ing reli­gion; com­ment­ing on the defendant’s deci­sion not to tes­ti­fy in vio­la­tion of the Fifth Amendment right against self-incrim­i­na­tion; mis­stat­ing the law; or assert­ing one’s own opin­ions on the defendant’s guilt.

One insid­i­ous form of improp­er argu­ment is invok­ing God or reli­gion dur­ing tri­al. Prosecutors infuse bib­li­cal or reli­gious law into their argu­ments for the death penal­ty. For exam­ple, in the case of Karl Chambers in York County, Pennsylvania, dur­ing the penal­ty phase, the pros­e­cu­tor argued to the jury that Chambers should be put to death because, “[a]s the Bible says, ​‘and the mur­der­er shall be put to death.’” The Pennsylvania Supreme Court held that the invo­ca­tion of reli­gious law was a delib­er­ate attempt to destroy the jury’s impar­tial­i­ty and objec­tiv­i­ty. These types of state­ments vio­late the estab­lish­ment clause of the First Amendment and remove the choice of the jurors by seem­ing­ly hand­ing it to a higher power.

A relat­ed form of improp­er argu­ment is the invo­ca­tion of racial or reli­gious ani­mus dur­ing tri­al. Prosecutors exploit jurors’ latent prej­u­dices to secure a death penal­ty con­vic­tion. At the tri­al of Angle Joe Perrie Vasquez in Horry County, South Carolina, the pros­e­cu­tor called Vasquez, a Muslim, a domes­tic ter­ror­ist and direct­ly com­pared his actions to those that occurred on September 11, 2001. The court held that this invo­ca­tion of reli­gious ani­mus, as well as incor­rect­ly call­ing him a ter­ror­ist, a crime for which he was not charged, ren­dered the rest of the sen­tenc­ing hear­ing fun­da­men­tal­ly unfair. Other exam­ples include tap­ping into long­stand­ing racist tropes by using ani­mal metaphors for black defen­dants to make the juries see the defen­dant as less than human. These types of argu­ments vio­late the Fourteenth Amendment and ask the jurors to con­sid­er fac­tors that do not con­tribute to guilt or inno­cence, but mere­ly play on potential biases.

Improper argu­ment can also be part of a larg­er pat­tern of mis­con­duct. Isaiah McCoy​’s Delaware death sen­tence was over­turned in 2015 after the Delaware Supreme Court found that the pros­e­cu­tor, R. David Favata, had improp­er­ly vouched for a wit­ness and repeat­ed­ly demeaned McCoy for rep­re­sent­ing him­self. Favata called McCoy illit­er­ate, told him to act like a man, and said: ​“You can dress him up. He’s still a mur­der­er.” Favata also lied to the tri­al court about attempt­ing to intim­i­date McCoy. In a rare act of dis­ci­pline, the Delaware Supreme Court sus­pend­ed Favata from prac­tic­ing law for six months because of his inten­tion­al mis­con­duct. McCoy was lat­er exon­er­at­ed from death row.