As an appellate attorney, it breaks my heart to see appellants get the shaft because their defense attorneys miss objecting to improper closing arguments. In my experience as both a trial and appellate attorney, it is flatly inexcusable and a complete dereliction of duty. Without the proper objection, these improper arguments are often allowed to unfairly infect the jury’s deliberations, and, ultimately, the Appellant’s life with an unfairly won verdict.
Judge Blue, in a special concurrence, clearly warned, “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper arguments, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”[i]
Simply, improper closing arguments hamper the “truth-finding process” and suggest to the jury to convict the Appellant on something other than the admissible evidence at trial. This is fundamentally wrong and unconstitutional. These illegal improper arguments are outlawed and therefore, not allowed under any circumstance. The logic is the same as purposefully introducing inadmissible evidence to prove a case (which is unethical) or hiding evidence favorable to the defense (equally as unethical).[ii] Further, Florida has completely adopted the American Bar Association’s Criminal Justice Standards: Prosecution Function. Prosecutors must seek justice and not simply convictions by any means (because we have a justice system and not a vengeance system).[iii]
In Ruiz v. State, 743 So.2d 1, 6 (Fla. 1999), the Florida Supreme Court explained:
The role of the attorney in closing argument is “to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to ‘testify’ as an ‘expert witness.’ The assistance permitted includes counsel’s right to state his contention as to the conclusions that the jury should draw from the evidence.” (Citation omitted) To the extent, an attorney’s closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding the defendant guilty.
Id. Additionally, the Florida Supreme Court explained:
In making these improper arguments, the prosecutor failed to maintain the demeanor required in a criminal trial. “A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and non-record evidence[.]”
Ruiz, 743 So.2d at 4. Too many criminal defense attorneys fail to recognize the importance of objecting to these nefarious arguments, are too lazy, or are simply ignorant. Under the Strickland[iv] standard for evaluating Sixth Amendment claims of “ineffective assistance of counsel,” there can be no rational “strategic reason” for failing to object to these improper arguments.
Think of it this way – if you went to the emergency room with a loved one and the ER doctor was too lazy or too ignorant to run a quick test to determine the cause of your loved one’s illness and misdiagnosed your loved one, would you be okay with that outcome? The question scarcely escapes its own statement. If it is unacceptable in that scenario, then why is acceptable for the attorney to botch his responsibility under the Sixth Amendment? And of course, it is not acceptable.
If you hire an attorney (or one is appointed) and you go to trial, you have a right to “effective assistance” of counsel under the Sixth Amendment. Hold them to it (or find an attorney that will provide you with the proper representation). In this instance, you have a right to have the attorney properly represent you (and that includes making the required objections and getting all the necessary rulings so that the record on appeal is complete should you lose at trial). Objectively, trial counsel should be providing the best representation possible as required by the Sixth Amendment. On the other hand, “effective assistance” of counsel does not mean you are entitled to a lawyer who “gets you off” or wins your case.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, or a criminal appeal (either state or federal for either), we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.
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No. 23-01 “Effective Assistance”
[i] Luce v. State, 642 So.2d 4 (Fla. 2d DCA 1994)
[ii] See the Rules Regulating the Florida Bar 4-3.1 (meritorious claims), 4-3.3 (candor), 4-3.4 (fairness to opposing counsel), and 4-3.8 (special role as a minister of justice).
[iii] See Rules Regulating the Florida Bar Rule 4-3.8 comments which explain the wholesale adoption of the prosecutor rules.
[iv] See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)