Although attorneys have wide latitude during closing arguments to the jury in commenting upon the evidence in the record and drawing reasonable inferences and conclusions from the evidence,8 such arguments remain subject to the general supervision and control of the trial court.9 There are limitations on the parameters of proper argument.10 A cardinal rule is that counsel should not misstate the evidence or mislead the jury as to any inference it may draw.11 This includes a statement that the lawyer for the opposing party “manufactured” the claim, as this constitutes a direct accusation that the attorney for the party asserting the claim engaged in a fabrication, and then committed a fraud upon the court and the jury by presenting that allegation at trial.12 Similarly, counsel should not misstate the law13 or state inapplicable law.14 The trail judge has the discretion to restrict arguments that have no rational basis in the evidentiary record.14.1
In that regard, if a claim a based on a statute, and a word in that statute is undefined, counsel who seek a specific definition should address the matter with the court when addressing jury instructions. If no definition is provided, then counsel may not provide a definition in closing argument as this creates a risk that the jury may accept a potentially incorrect definition.14.2
Counsel should not make arguments calculated to inflame the passions or prejudices of the jury, as this goes beyond the facts of the case and the reasonable inferences therefrom and distracts the jurors from their role as objective fact finders.15 As such, counsel should not make arguments relying on racial, ethnic, economic or other prejudices of society, as these introduce improper elements of irrelevance and irrationality into a trial.16 In furtherance of these rules, counsel should be cautious in the use of epithets to describe parties and witnesses. For example, it is improper to refer to parties or witnesses as “scoundrels,” “scum,” “slime” or “snakes” or to suggest that an individual would “take the pennies off a dead man’s eyes.”17. It is also improper to suggest that the Bible “doesn’t mean anything” to certain individuals as it improperly raises the issue of the religious beliefs of those individuals and appeals to jurors’ passions rather than their reasoned responses.18 Similarly, it is improper to refer to someone as a “sinner” or the “devil.”19
Counsel should not refer to an individual as a “liar” or a “fraud” unless (i) it is a legitimate inference to be drawn from the evidence, and (ii) counsel relates the reference to specific evidence tending to show that the testimony or statement is a lie.20 It is not improper, however, for counsel to refer to a party or witness as “biased” or having a “big stake in the outcome of the case,” as this merely challenges the credibility of the testimony rather than flatly stating as a fact that the witness’s testimony was false.21
Counsel may not express a personal belief as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of a criminal defendant.22 Similarly, it is improper to suggest or imply to the jury that counsel has knowledge of facts that were not presented to the jury or to refer to facts outside the record, unless such facts are matters of common knowledge based on ordinary human experience or are of the type of which judicial notice may be taken.23 Such actions constitute a form of unsworn, unchecked testimony exploiting the influence of the attorney’s position and undermining the objective attachment that should separate a lawyer from the cause he or she is arguing.24 Given that prosecutors are officers of the Court and representatives of the State, there is a risk that jurors may give special weight ti the prosecutors’ statements.24.1 In furtherance of this rule, counsel should avoid the use of the personal pronoun “I” in arguments, for example, saying “I believe that . . . ,” “I accuse the defendant . . .,” or “I stand behind my client.”25 However, use of the pronoun “I” is not per se improper, and must be considered in context.26 Counsel should also avoid stating that a witness was “right,” as it suggests that a witness’ testimony agrees with the facts of the case.26.1
Counsel should also avoid comments that suggest to the jury the judge’s opinion of the case.27 Similarly, it is improper to relate or to comment upon the facts of another judicial proceeding or to refer to and discuss the holding of another case with the purpose of influencing the jury’s verdict in the case before it, as this may suggest to the jury some judicial comment on the case.28
A “golden rule” of argument is that it is improper to appeal to the sympathy of the jurors by asking them to place themselves in the shoes of a party to the suit or, in a criminal case, the victim, in arriving at a verdict, and to render such verdict as they would want rendered in a case in which they were similarly situated. This is because the jury is supposed to make a disinterested evaluation of the evidence, and not an emotional identification with a party.29 Phrases such as “suppose you had just one element,” “suppose that all you had to deal with,” “suppose all you had to do” and like variations are ill-advised and come perilously close to asking the jurors to place themselves in the position of a party.30 It is not a violation of the “golden rule,” however, to ask the jurors to apply their life experiences in evaluating the evidence.31
It is improper for counsel to analogize to personal experiences to create a type of empathy with either the client32 or the jury33 as this introduces facts outside the record.
It is improper to state to a jury that if the plaintiff (in a civil case) or the State (in a criminal case) had no claim or had not proved its case they would not be before the jury, as it insinuates that the court, in permitting the claim to go before the jury, had ruled that the claim was valid.34
It is improper to suggest to the jury that it weigh the courtroom demeanor of a non-testifying party, as such demeanor is not in evidence, and, in any event, there is no such thing as a norm of courtroom behavior.35 For the same reason, it is improper to comment on the general courtroom demeanor of a testifying party, although it is proper to comment on the demeanor of a party while that party was testifying.36
It is improper to divide the jury’s attention from the specific issue of the defendant’s guilt or liability by referring to the larger interest of the community and the social consequences of a verdict or judgment. The role of the jury is not to make policy but to apply the law to the facts. Considerations outside the legitimate factual parameters of the case as presented are improper.37 In criminal cases, however, it is not improper to call the jury’s attention to the general public policy against crime, so long as the focus is on the evidence of the crime at issue.38
It is not improper to suggest that the jury use its common sense in weighing a witness’s credibility or motivation, as credibility is a proper issue.39 For the same reason, it is not improper to refer to the fee arrangements of an opposing party’s expert witnesses.40
It is inappropriate to impugn the credibility of opposing counsel, for example, by claiming that opposing counsel had not acted in good faith in stating a summary of the evidence.41 Similarly, it is improper to mock the opposing case, for example, by calling the testimony “cute” or a “sales pitch.”42
Because testimonial privileges are recognized as serving valid public policy objectives,43 it is improper for counsel to raise before the jury the fact that such a privilege was claimed in the hope of drawing some inference in the invocation of a privilege.44
8. Burroughs v. State, 988 A.2d 445, 449 (Del. 2010); Bruce v. State, 781 A.2d 544, 555 (Del. 2001); Burke v. State, 484 A.2d 490, 498 (Del. 1984).
9. See Hooks v. State, 416 A.2d 189, 204 (Del. 1980); Robelen Piano Co. v. Di Fonzo, 169 A.2d 240, 248-49 (Del. 1961).
10. The extent to which any violation of these rules would constitute reversible error on appeal is beyond the scope of this treatise.
11. DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993); Brokenbrough v. State, 522 A.2d 851, 860 (Del. 1987); Hughes v. State, 437 A.2d 559, 567 (Del. 1981); Henne v. Balick, 146 A.2d 394, 398 (Del. 1958).
12. Putney v. Rosin, 791 A.2d 902, 905 (Del. Super. 2001).
13. DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993); Shively v, Klein, 551 A.2d 41, 44-45 (Del. 1988); Coe v. Schneider, C.A. No. 257, 1983, slip op. at 2-3, O’Hara, J. (Del. Super. Nov. 19, 1981), app. refused mem., 450 A.2d 894 (Del. 1982).
14. DeAngelis v. Harrison, 628 A.2d 77, 80-81 (Del. 1993).
14.1. Crosby v. State, 108 A.3d 291, 292 (Del. 2015).
14.1. Brown v. State, 49 A.d 1158, 1163 (Del. 2012).
15. State v. Bennefield, 567 A.2d 863, 867 (Del. 1989); Brokenbrough v. State, 522 A.2d 851, 855 (Del. 1987); Hughes v. State, 437 A.2d 559, 567 (Del. 1981).
16. State v. Bennefield, 567 A.2d 863, 867 (Del. 1989); Brokenbrough v. State, 522 A.2d 851, 857 (Del. 1987).
17. State v. Bennefield, 567 A.2d 863, 867-68 (Del. 1989).
18. Hooks v. State, 416 A.2d 189, 205 (Del. 1980).
19. Brokenbrough v. State, 522 A.2d 851, 857 (Del. 1987).
20. Whittle v. State, 77 A.3d 239, 246 (Del. 2013); State v. Bennefield, 567 A.2d 863, 864-65 (Del. 1989); Jensen v. State, 482 A.2d 105, 118 (Del. 1984); Hughes v. State, 437 A.2d 559, 571 (Del. 1981).
21. Walls v. State, 560 A.2d 1038, 1049 (Del. 1989), cert. denied, 493 U.S. 967 (1989).
22. Whittle v. State, 77 A.3d 239, 243-44 (Del. 2013); Kirkley v. State, 41 A.3d 372, 377 (Del. 2012); Hardy v. State, 962 A.2d 244, 247-48 (Del. 2008) (statement that falsely reported rapes do not go to trial improperly inferred that policed do not arrest someone until they are certain of guilt); Ayers v. State, 802 A.2d 278, 282 (Del. 2002); Sullivan v. State, 636 A.2d 931, 942 (Del.), cert. denied, 513 U.S. 833 (1994); DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993); Pennell v. State, 602 A.2d 48, 51 (Del. 1991); State v. Bennefield, 567 A.2d 863, 864 (Del. 1989); Michael v. State, 529 A.2d 752, 763 (Del. 1987); Hughes v. State, 437 A.2d 559, 567, 570 (Del. 1981); Joseph v. Monroe, 419 A.2d 927, 930 (Del. 1980); Hooks v. State, 416 A.2d 189, 207 (Del. 1980); Sexton v. State, 397 A.2d 540, 544 (Del. 1979); Lee v. A.C.& S. Co., Inc., C.A. No. 79C-DE-125, slip op. at 11, Taylor, J. (Del. Super. July 22, 1987) (ORDER); Del. R. Prof. Cond. 3.4(e).
23. Spence v. State, 129 A.3d 212, 228-29 (Del. 2015); Kirkley v. State, 41 A.3d 372, 377 (Del. 2012) (“[w]hen a prosecutor implies that the State only brings claims when the defendant did what the indictment charges, the prosecutor vouches for the State’s case”); Burroughs v. State, 988 A.2d 445, 449 (Del. 2010); Torres v. State, 979 A.2d 1087, 1096 (Del. 2009); Sullivan v. State, 636 A.2d 931, 942 (Del. 1994), cert. denied, 513 U.S. 833 (1994); Saunders v. State, 602 A.2d 623, 624 (Del. 1984), reh’g denied, 567 A.2d 423 (Del. 1989); Michael v. State, 529 A,2d 752, 763 (Del. 1987); Brokenbrough v. State, 522 A.2d 851, 855 (Del. 1987); Hughes v. State, 437 A.2d 559, 567 (Del. 1981); Hooks v. State, 416 A.2d 189, 207 (Del. 1980); Lee v. A.C.& S. Co., Inc., C.A. No. 79C-DE-125, slip op. at 11, Taylor, J. (Del. Super. July 22, 1987)(ORDER); Del. R. Prof. Cond. 3.4(e).
24. Brokenbrough v. State, 522 A.2d 851, 858 (Del. 1987).
24.1. Whittle v. State, 77 A.3d 239, 244 (Del. 2013).
25. Williams v. State, 796 A.2d 1281, 1291 (Del. 2002); Pennell v. State, 602 A.2d 48, 51 & n.2 (Del. 1991); Zimmerman v. State, 565 A.2d 887, 891 (Del. 1989); Brokenbrough v. State, 522 A.2d 851, 859 (Del. 1987).
26. Ayers v. State, 802 A.2d 278, 282 (Del. 2002); Caldwell v. State, 770 A.2d 522, 529 n.8 (Del. 2001); Mills v. State, No. 56, 2007, Jacobs, J. (Del. Dec. 3, 2007) (ORDER), disposition reported at 947 A.2dd 1122 (Del. 2007) (TABLE).
26.1. Whittle v. State, 77 A.3d 239, 246 (Del. 2013).
27. State v. Eller, Cr. A. No. N87-03-002A, slip op. at 2, Stiftel, J. (Del. Super. Aug. 12, 1987).
28. DeAngelis v. Harrison, 628 A.2d 77, 81 (Del. 1993).
29. Brown v. Delaware, 49 A.3d 1158, 1161 (Del. 2012); Sullivan v. State, 636 A.2d 931, 941 (Del. 1994), cert. denied, 513 U.S. 833 (1994); Grayson v. State, 524 A.2d 1, 2-3 (Del. 1987); Delaware Olds, Inc. v. Dixon, 367 A.2d 178, 179 (Del. 1976). See also Banther v. State, 977 A.2d 870, 890-91 (Del. 2009) (telling jurors that they are breathing, the same way the victim was at one point was improper).
30. McNally v. Eckman, 466 A.2d 363, 372 (Del. 1983).
31. Justice v. Neutz, C.A. No. 86C-06-88, slip op. at 3-4, Herlihy, J. (Del. Super. May 13, 1993), aff’d mem., 634 A.2d. 938 (Del. 1993).
32. See Spahn v. People’s R. Co., 92 A. 727, 730 (Del. Super. 1912).
33. Burke v. State, 484 A.2d 490, 498 (Del. 1984).
33. Washam v. State, 235 A.2d 279, 280 (Del. 1967); Robelen Piano Co.v Di Fonzo, 169 A.2d 240, 248 (Del. 1961).
35. Hughes v. State, 437 A.2d 559, 572 (Del. 1981).
36. Walls v. State, 560 A.2d 1038, 1051 (Del. 1989), cert. denied, 493 U.S. 967 (1989).
37. Hooks v. State, 416 A.2d 189, 205 (Del. 1980); University of Delaware v. Munson, 316 A.2d 206, 208 (Del. 1974) (improper for a jury to consider collateral effect of damage award on others like the defendant).
38. Hooks v. State, 416 A.2d 189, 206 (Del. 1980).
39. Burke v. State, 484 A.2d 490, 499 (Del. 1984).
40. Burke v. State, 484 A.2d 490, 499 (Del. 1984).
41. Walker v. State, 790 A.2d 1214, 1219 (Del. 2002); Williams v. State, 491 A.2d 1129, 1135 (Del. 1985), cert. denied, 474 U.S. 824 (1985).
42. Drumgo v. State, 976 A.2d 121, 124 (Del. 2009).
43. See §15:1.
44. D.R.E. 512(a).
© 2016 David L. Finger