“What Prosecutors Can’t Say”

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

Introduction

Frequently, fictional legal shows like "Boston Legal" and/or "Law and Order" depict prosecutors giving passionate closing arguments during jury trials. The persuasive and powerful words that flow from the fictional prosecutor's lips are carefully scripted by the best Hollywood writers. Unbeknownst to most viewers and perhaps even the writers themselves, many of their arguments are inadmissible in Florida courts and most courts around the country. Below are a few of the more popular arguments made by prosecutors on these programs and the reasons why the thoughts advanced are improper.

Prosecutor Arguments

1. "Ladies and gentlemen of the jury, you must find the defendant guilty in order to send a message to this community that the defendant's behavior will not be tolerated."
2. "Officer John Doe testified that he personally witnessed the defendant commit the crime. The defendant would have you believe that Officer Doe is lying. A veteran officer of the law would not jeopardize his career by lying in a court a law."
3. "Folks, look at the defendant sitting there next to his lawyer. He's been sitting emotionless throughout this trial. It's obvious he could care less about the victim in this case. That's how he was able to do what he did to her."
4. "If the defendant really didn't commit this heinous crime, why wouldn't he simply get on the stand and tell you where he was that night? Instead, he chose to sit at that table, next to his attorneys and say nothing. Well, that's saying a lot."
5. "Put yourself in the defendant's shoes. If someone really felt threatened, like the defendant would have you believe, then he would have called 911 or yelled for help. That's what you all would have done. He obviously didn't call for help because he wasn't scared of the victim at all."

Analysis Concerning Arguments Above

1. Prosecutors are prohibited from making arguments that calls for the jury to "send a message" with their verdict. They are also prohibited from suggesting to the jury that their guilty verdict is necessary in order to ensure that the community is safe.
2. Arguments which suggest that officers wouldn't jeopardize their careers by lying in a criminal case are prohibited.
3. Prosecutors may not comment on the defendant's demeanor while sitting in court. The only exception occurs when the defendant takes the witness stand.
4. Prosecutors must stay away from any language that may possibly be considered as a comment on the defendant's right to remain silent.
5. Often referred to as a "Golden Rule Violation," prosecutors may not ask the jurors to put themselves in the place of either the defendant and/or the victim.

Conclusion

Often the closing arguments on popular television law related dramas are phenomenal. The problem, as illustrated above, is that the arguments make for great television, however, are not admissible in most courts.

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