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    http://www.law.com/jsp/ca/PubArticle...022&slreturn=1

    Ninth Circuit Overturns Drug Conviction Because of Sarcastic Closing

  • #2
    Woops indeed... All that work on a trial out the window over one paragraph worth of writing that he threw in at the end of his closing. Although, it doesn't seem that 'sarcasm' was the issue that the court had with his closing, but rather his use of making some sort of policy argument. After reading this, I tried to think about mock trial closings that have made such an appeal, and it seems like something we see all the time in mock trial.
    Objection ... he's making my witness look like a fool.

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    • #3
      Originally posted by a-mac View Post
      Woops indeed... All that work on a trial out the window over one paragraph worth of writing that he threw in at the end of his closing. Although, it doesn't seem that 'sarcasm' was the issue that the court had with his closing, but rather his use of making some sort of policy argument. After reading this, I tried to think about mock trial closings that have made such an appeal, and it seems like something we see all the time in mock trial.
      Federal court probably takes it more seriously than state court as well. And I think more scrutiny is (and should be) paid attention to prosecutors than defense attorneys.

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      • #4
        Originally posted by Nur Rauch View Post
        Federal court probably takes it more seriously than state court as well. And I think more scrutiny is (and should be) paid attention to prosecutors than defense attorneys.
        Yeah, I would agree with that.
        Objection ... he's making my witness look like a fool.

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        • #5
          Originally posted by Nur Rauch View Post
          Federal court probably takes it more seriously than state court as well. And I think more scrutiny is (and should be) paid attention to prosecutors than defense attorneys.
          I'm fairly certain that, at least compared to Minnesota state courts, where I practice, federal courts probably don't take this more seriously. Minnesota has very strict rules on what prosecutors can say during their closing arguments.

          The structure of the system makes it all but inevitable that the substance of a prosecutor's closing argument will be given more scrutiny than that of defense counsel. If the defendant is acquitted -- even if it is because of an improper closing argument made by the defense -- the state cannot appeal. If the defendant is convicted, he or she can appeal his conviction and argue that the prosecutor committed error or misconduct during closing argument. But, in most situations, the state cannot respond, "But the defense committed error/misconduct too!" Generally speaking, it's simply not relevant to the legal issues at hand on appeal. Improper arguments by the defense thus receive very, very little scrutiny by appellate courts.

          This is a great source of frustration to prosecutors. Generally, I think we agree that we are in a special position of power and that we need to play by the rules, though sometimes there is tension between prosecutors and appellate courts about what the rules should be or whether a certain argument broke the rules. But we very frequently see defense attorneys make improper arguments during closing. If the prosecutor's objection to the argument is overruled, there is no further remedy.

          Generally, defense attorneys have to play by the same rules as prosecutors during closing argument. But the remedies for misconduct by defense counsel are far more limited than those for prosecutors. It's important to keep this in mind when you read cases alleging prosecutorial misconduct or error. You would probably see an equal number of cases involving similar conduct by defense counsel, but such conduct is almost never reviewed by appellate courts.
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          • #6
            Yeah, I also don't read that opinion as holding that sarcasm was the problem, though the article casts it that way. In fact, I'd say that, based on my limited experience, sarcasm can help a great deal with crosses and closings -- so long as you don't use the sarcasm to make some otherwise-inappropriate remark (such as asking for a conviction in order to "send a message" ).

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