Although counsel are generally given wide latitude in commenting upon the evidence in the record and drawing reasonable inferences and conclusions therefrom,66 the court has the duty to control the conduct of its officers. In furtherance of that duty, if counsel get carried away during argument, it is the duty of the judge, even in the absence of an objection, to act, to administer a mild rebuke and to give the jury an appropriate cautionary instruction to remove any misunderstanding that counsel might have caused.67 Striking the balance of permissible and impermissible argument calls for an exercise of the sound discretion of the trial judge.68

Notwithstanding the duty of the judge to act, it is incumbent upon counsel to object to improper argument to preserve the issue for any appeal.69 If, in the course of closing arguments, counsel goes beyond the bounds of permitted argument, it is important that opposing counsel enter a prompt objection. The objection should be made either by interrupting opposing counsel’s argument or, in any event, at the close of such argument. Objection at the time of the violation will enable a curative instruction by the court to have a maximum effect and may deter further prejudicial comments during the remainder of opposing counsel’s argument. Further, failure to make a timely objection may be deemed a waiver if the court determines that a curative instruction or other action would have been sufficient but the ability to correct the matter no longer exists because of lapse of time and intervening events.70

A curative instruction must be tailored to address the source of the prejudice and to expunge its prejudicial impact.  Mere recitation of a pattern jury instruction will not be sufficient.70.1

66. Burke v. State, 484 A.2d 490, 498 (Del. 1984).

67. Sammons v. Doctors for Emergency Services, P.A., 913 A.2d 519, 539 (Del. 2006); DeAngelis v. Harrison, 628 A.2d 77, 80 (Del.1993); State v. Bennefield, 567 A.2d 863, 868 (Del, 1989); Hooks v. State, 416 A.2d 189, 203-04 (Del. 1980); Robelen Piano Co. v. Di Fonzo, 169 A.2d 240, 248-49 (Del. 1961).

68. Ross v. State, 482 A.2d 727, 743 (Del. 1984), cert. denied, 469 U.S. 1194 (1985).

69. Medical Center of Delaware, Inc. v. Lougheed, 661 A.2d 1055, 1060 (Del. 1995); State v. Bennefield, 567 A.2d 863, 868 (Del. 1989).

70. General Motors Corp. v. Grenier, 981 A.2d 531, 541 n.27 (Del. 2009); Medical Center of Delaware, Inc. v. Lougheed, 661 A.2d 1055,1060 (Del.1995).

70.1. Kirkley v. State, 41 A.3d 372, 380-81 (Del. 2012).

© 2010  David L. Finger