Friday, October 25, 2013

New case on the limits of proper argument

One of the topics I cover in my class is the notion of limits of proper argument.  I assign a series of cases that discuss whether it is proper for an attorney to cite the Bible in support of an argument when addressing the jury, or to ask the jury to "send a message" by reaching a certain verdict.  Now I have a new case to discuss the issue.  The Legal Profession Blog is reporting on a recent case called State of Montana v. Ugalde in which a dissenting judge would have reversed a conviction because of the prosecutor's closing argument. The case involved a prosecution related to injuries to an infant. At the end of the trial, the prosecutor began her closing argument with a first-person narrative from the perspective of the infant, relating the State's view of what happened as though the victim was testifying on her own behalf. During rebuttal, the prosecutor then told jurors that the infant was "speaking to you" and asked the jurors to "tell the victim that you heard him and that you find the defendant guilty. I agree with the dissenting judge. His view is consistent with the other cases on the subject. Aside from being a little creepy, the prosecutor's approach was improper. Essentially, she testified for the victim who was not subject to cross examination, she played to the emotions of the jury, and she asked the jurors to "send a message." Here is what the judge wrote:
. . . I believe the prosecutor's channeling the infant-victim in closing arguments denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer the same, that he no longer can tell his mother he loved her, and that he can only speak three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to tell you what happened to him on June 11th of 2008 .” Pierce asked the jurors to tell I.N. that they heard him and to tell Ugalde that they know what happened that day. The evidence presented at trial concerning the impact upon the eight-month-old victim and the cause of his injuries was overwhelming. But that does not justify our overlooking a prosecutor's improper closing argument that was calculated to appeal to the jury's emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the trial. I therefore would reverse for plain error and remand for a new trial.