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Trespassing on Due Process: Constitutional Objections to Improper Closing Argument
By Tony Bornstein
[T]here are … depths into which the unfair argument of a too zealous advocate cannot be permitted to sink.
— Rheubottom v. State1
One of defense counsel’s most important roles is to ensure that the prosecutor does not transgress those bounds.
— Washington v. Hofbauer2
Misconduct in closing argument takes many forms. For example, prosecutors sometimes state facts that are not introduced in evidence. They often vouch for the credibility of their cases, their witnesses, and even themselves. In cases involving heinous crimes, they occasionally appeal to the jurors’ emotions with inflammatory cries for vengeance. This article discusses prosecutorial closing arguments that undermine constitutional rights of the accused.
Some arguments are blatantly improper. For example, “[t]he prosecution cannot use the defendant’s exercise of specific constitutional guarantees against him at trial.”3 One such argument is quite familiar: the comment on the defendant’s right to remain silent. Such a comment vi
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