A lesser discussion involved the limitations on a prosecutor’s closing argument. At a criminal trial, the attorneys make opening statements, evidence is presented (through witnesses), and the attorneys make closing arguments (among other events, such as jury selection, jury instructions, deliberations, etc.).
Closing arguments are intended to permit an attorney to argue why the evidence supports the outcome the attorney advocates. Attorneys, however, can get carried away in closing arguments, straying from the evidence to matters that really are not appropriate for jury consideration. The court explained:
While prosecutors are entitled to argue forcefully for the defendant’s conviction, closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts. A prosecutor should not refer to the defendant's failure to testify, misstate the evidence or refer to facts not in evidence, interject personal belief in the defendant's guilt, play on racial, ethnic, or religious prejudice or on the jury’s sympathy or emotions, or comment on the consequences of a verdict. A prosecutor may not use closing argument to argue or suggest facts not previously introduced in evidence.
Referring to certain of the prosecutor’s closing argument, Justices Lenk and Gaziano concluded:
The suggestion that the victim was cowering . . . was . . . speculative, and prone to inflame the jury. Prosecutorial appeals to sympathy obscure the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt . . . In asserting that . . . the victim ‘knew what was coming,’ the prosecutor also improperly invited juror sympathy by emphasizing the purported emotions of the victim immediately prior to his death, where there was no evidence as to what the victim was feeling . . . [T]he prosecutor’s statements not only played to the emotions of the jury in inviting them to imagine the victim's last moments, but also were unsupported by the evidence . . . [T]he prosecutor crossed the line, and her remarks as to the victim’s position and state of mind shortly before his death were improper.”
In legal circles, concluding that an attorney intentionally resorted to jury emotion to obtain a conviction is damning.
While Justice Lenk and Gaziano concluded that the prosecutor’s closing argument was highly improper, these justices concluded that these improprieties did not warrant upsetting the defendant’s conviction.
Justices Cypher, and Kafker agreed that the defendant’s conviction need not be upset--so on that issue the court was unanimous. Yet Justices Cypher and Kafker wrote separately about the prosecutor’s closing arguments:
[We] disagree . . . that the prosecutor went beyond the bounds of a reasonable inference in [closing] argument . . . [We] . . . disagree . . . that the prosecutor’s use of the word ‘cowering’ was mere speculation rather than reasonable inference based on the evidence . . . Finally, [we] disagree that the prosecutor’s statement that the victim ‘knew what was coming’ improperly invited juror sympathy by emphasizing purported emotions of the victim before his death that were unsupported in evidence.
The Supreme Judicial Court is the highest court in Massachusetts. Over matters of state law, it is the last word. Its justices occupy the absolute highest judicial positions in the Commonwealth. Yet these four judges could not agree on what is permitted during an event that occurs at virtually every trial in the Commonwealth--closing argument--and were evenly divided on the issue: two reaching one conclusion and two reaching the opposite conclusion.
So this is the life of an attorney: striving to satisfy requirements without clear guidance on what are the requirements.
