Trial Tactics
Proper and Improper
Closing Argument
BY STEPHEN A. SALTZBURG
E
very experienced trial lawyer knows that
in closing argument counsel are permitted to argue about the evidence presented
and to urge jurors to accept or reject the evidence
and the inferences that might be drawn from it
for whatever reasons counsel put forward. It is
not unusual for counsel to suggest analogies that
might appeal to jurors or to quote from a source
that jurors might find persuasive. There are limits, however, to what may be legitimately done in
closing argument. United States v. Wright, 625
F.3d 583 (9th Cir. 2010), illustrates this well.
The Facts
Jason Wright was convicted of transportation and
possession of child pornography. The case arose
when FBI Special Agent Robin Andrews conducted an undercover search on a file-sharing program
known as an mIRC (Internet Relay Chat). Andrews
came upon the user name “azgymguy2” in two chat
rooms, “100% teensexpics” and “gayteenpics.” Andrews typed in a “trigger” that established a connection with azgymguy2’s file-trader and downloaded
13 files, three of which were child pornography.
Later, Andrews repeated the connection and downloaded 59 files, 21 of which were child pornography.
She conducted three more undercover sessions before she matched Wright’s home address with his Internet connection. The FBI executed a search warrant at Wright’s home and seized Wright’s desktop
computer and a laptop.
About a week after the search, Wright’s roommate Shawn Dittfurth disappeared. At trial
STEPHEN A. SALTZBURG, a past chair
of the Criminal Justice Section, is the
Wallace and Beverley Woodbury University
Professor at George Washington University
School of Law in Washington, D.C., and
contributing editor to Criminal Justice
magazine. He is also author of the book,
Trial Tactics, Second Edition (2009,
American Bar Association), an updated and
expanded compilation of his columns.
Wright claimed that it was Dittfurth who was responsible for possession of the child pornography
found on Wright’s desktop computer. The jury
rejected the defense and found Wright guilty.
On appeal, Wright argued that the prosecutor’s
closing argument amounted to misconduct. The
court of appeals accepted the argument in part
and rejected it in a number of respects.
The Improper Closing Argument
Wright asserted on appeal that the prosecutor
engaged in misconduct during closing argument
by improperly asserting his personal disbelief of
the defense and submitting his own testimony to
the jury. The court of appeals found the following
“trifecta” argument to be “the most troubling”:
Now, I’ve been handling these cases for a
number of years and I’ve seen where defense—where the defense of it was my roommate has been advanced, and I’ve seen the defense advanced that it was some sort of hacker
or trojan or virus, something along those lines,
and then I’ve also seen, well, somebody did
something inappropriately, the interview, this,
that, something along those lines.
But never have I seen the trifecta, all three
in this same place. This is very—this is unbelievably remarkable that you guys got
to witness this. So we’re betting on Shawn
Dittfurth to win, the FBI to place, and I
guess some computer hacker, trojan, virus
mystery man to show, but the problem is
none of those things ever showed.
(Id. at 610.)
The court added that the prosecutor made several other references to his own impressions of
the evidence. For example, the prosecutor made
the following argument:
Of course [Wright’s] denying that he said he
knew he should not have child pornography
on his computer. I’m not sure why he’s denying that because if somebody asked me should
you have child pornography on your server,
on your computer, I would say of course not,
but here he is saying no, no, no, we weren’t—
there was no child pornography and I never
said anything about how I knew I shouldn’t
have child pornography on this computer.
(Id. at 610-611.)
Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
CJsu11_web.indd 62
7/14/11 10:49 AM
The court focused mostly on the trifecta argument and concluded that “[w]hile it is probably not
correct to label this misconduct as vouching, . . .
the prosecutor’s comment only gave the jury his impression of the evidence in the case, but it improperly introduced evidence outside the record—i.e.,
the prosecutor’s experience with similar cases—as
a means of commenting on the defense’s case and
Wright’s credibility.” (Id. at 611.) Thus, the court
rejected the argument that the prosecutor engaged
in improper vouching, but it concluded that the argument was “certainly improper” because it denigrated the defense as a sham. (Id.)
The court cited United States v. Sanchez, 176
F.3d 1214 (9th Cir. 1999), and United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002), in concluding
that “the prosecutor’s ‘trifecta’ comment was improper” and “the prosecutor’s repeated references
to how he viewed the evidence were also improper.”
(625 F.3d at 612.) Quoting from Hermanek, 289
F.3d at 1100, the court wrote as follows: [P]rosecutors’ arguments not only must be based on facts in
evidence, but should be phrased in such a manner
that it is clear to the jury that the prosecutor is summarizing evidence rather than inserting personal
knowledge and opinion into the case. (Id.)
Improper Vouching
The court explained the difference between improper vouching and the conduct of the prosecutor in Wright’s case. Improper vouching occurs
when a lawyer places the prestige of the government behind a witness by providing personal assurances of the witness’s credibility or when a
lawyer suggests that the testimony of a witness is
supported by information outside that presented
to the jury. Wright’s complaint was not really improper vouching; it was that the prosecutor denigrated the defense and the defendant rather than
vouched for government witnesses.
Proper Argument as to Credibility
Wright attempted to persuade the court that
the prosecutor improperly pitted Wright’s credibility against the government’s witnesses, as the
court had found in United States v. Combs, 379
F.3d 564, 567–68 (9th Cir. 2004) (holding that it
was improper to ask the defendant point blank
whether the testifying agent lied and for the prosecutor to make a closing argument in which he
several times referred to the defendant calling the
agent a liar, and impermissibly referring to the
fact that if the agent lied he would have committed perjury and would have been “flush[ing] his
ten-year career down the toilet.”)
The court rejected the argument and found that
Combs was distinguishable. The prosecutor merely
contrasted Wright’s testimony with that of Agent
Andrews and a detective. He did not inject his personal opinions as to credibility, which the court
had found to be improper in United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998). The court
cited United States v. Molina, 934 F.2d 1440, 1445
(9th Cir. 1991), for the proposition that “[i]n a case
that essentially reduces to which of two conflicting
stories is true, it may be reasonable to infer, and
hence to argue, that one of the two sides is lying.”
Striking “Hard Blows”
Wright complained that the prosecutor improperly insulted him several times during cross-examination and
in closing argument. The court rejected the argument
and offered five examples of prosecutorial comments
that struck “hard blows” but were not improper:
(1) [R]eferring to Wright’s statement that he
used pornography to avoid being promiscuous, the prosecutor stated “Like are those
the only two options? I mean couldn’t you
be in a committed relationship?”
(2) [T]he prosecutor asked Wright during
cross-examination, “You’re proud of your
collection of child pornography, aren’t you?”
(Wright responded: “No, it actually disgusts
me that people would trade such things.”)
(3) [T]he prosecutor referred to T-shirt slogans Wright came up with for his business
Offensive Ts.com.
(4) [T]he prosecutor told the jury that
Wright’s practice of burning blockbuster
movies was illegal.
(5) [T]he prosecutor responded to the defense’s theory that law enforcement was “out
to get him” by telling the jury that Wright
was not Pablo Escobar or “the Larry Flynt
of child pornography.”
(625 F.3d at 613.)
The court firmly stated that “[n]ot one of these
statements was improper.” (Id.) The prosecutor’s com-
Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
CJsu11_web.indd 63
7/14/11 10:49 AM
ments were based on the evidence and he was entitled
to draw all reasonable inferences from the evidence.
Harmless Error
The court found that the statements by the prosecutor that amounted to improper comments,
standing alone, were harmless error. The court
concluded that, although “[t]he ‘trifecta’ comment
was by far the most egregious statement made by
the prosecutor, “[t]he improper statements were
relatively isolated incidents over the course of a
ten day trial.” (Id.) The court added that the effect
of the trifecta argument was mitigated by an excellent rebuttal by defense counsel that focused on
the three defenses raised by Wright; noted that the
jury acquitted Wright on eight counts, which indicated that it did not discredit Wright’s testimony;
and concluded that “the prosecutor’s misconduct
was fairly mild and was mitigated by the court’s
general jury instructions, given at the beginning of
the trial, as well as at the end of the prosecutor’s
closing argument and during the final jury instructions that ‘[a]rguments and statements by lawyers
are not evidence.’” (Id. (quoting United States v.
Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993)).
The court observed, however, that it also found
error in the exclusion of 404(b) evidence; it was
remanding the case for fact-finding on Wright’s
motion to exclude statements made to Agent Andrews and a detective; and therefore, it would not
address in the initial appeal Wright’s argument
that cumulative error required reversal.
Lessons
1. It is permissible for prosecutors to contrast a
defendant’s testimony with that of government
witnesses. If it is clear that the testimony of the
defendant and that of the government witnesses cannot both be true, it is permissible for the
prosecutor to argue that the jury should accept
the testimony of the government witnesses and
reject the testimony of the defendant.
2. It is permissible for prosecutors to point out problems with one or more theories of defense raised
by a defendant, but in doing so prosecutors cannot refer to their own experience or their own
opinions because that makes them witnesses.
3. It is permissible for prosecutor to strike
“hard blows” in cross-examination and to
draw permissible inferences from the evidence
presented in closing argument, even if those
inferences also strike hard at a defense. n
Published in Criminal Justice, Volume 26, Number 2, Summer 2011. © 2011 by the American Bar Association. Reproduced
with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any
form or by any means or stored in an electronic database or retrieval system without the express written consent of the
American Bar Association.
CJsu11_web.indd 64
7/14/11 10:49 AM