PRACTICE POINTERS AND A MARYLAND LAW REVIEW ON: OPENING STATEMENTS AND CLOSING ARGUMENTS

By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

In this article we review important practice pointers and Maryland case law on open statements and closing arguments.

I. Opening Statements

A. The Purpose of the Opening Statement

The primary purpose of an opening statement in a criminal prosecution is to apprise, with reasonable succinctness, the trier of facts with the questions involved and what the State or defense expects to prove, so as to prepare said trier of the facts for the evidence to be adduced. Clarke v. State, 238 Md. 11 (1965).

B. Can a case be won by an Opening Statement?

In Goff v. Richards, 19 Md. App. 250 (1973), the Court of Special Appeals held that the granting of a directed verdict after the opening statement by counsel was not authorized in civil cases.

This holding was later applied to a criminal case in State v. Despertt, 73 Md. App. 620 (1988), where the Court cleared any lingering doubt and held "that the granting of a judgment of acquittal on opening statement is improper." However improper, that impropriety did not remove the double jeopardy bar to re-prosecution after the trial court entered a judgment of acquittal after the State's opening statement.

C. Is the Opening Statement binding upon a party?

Assertions made during opening statement are not admissible to establish the attorney's theory of the case, but may fall under the category of admissions made by an attorney, acting as his client's agent within the scope of his or her authority. McLinney v. Lansdell Corp. of Md., 254 Md. 7 (1969).

In federal court, statements by an attorney concerning a matter within his employment may be admissible against the retaining client, and a clear and unambiguous admission of fact made by a party's attorney in an opening statement in a civil or criminal case is binding upon the party. United States v. Blood, 806 F.2d 1218 (4th Cir. 1986).

D. Opening Statements Which Are Likely to Cause a Mistrial

1. Commenting on the Defendant's Failure to Testify

In Simpson v. State, 442 Md. 446 (2015), the Court of Appeals had to determine whether the prosecutor's remarks in opening statement, rather than closing argument, ran afoul of the prohibition against making an adverse comment upon the defendant's failure to testify in a criminal case. As a matter of first impression, the Court held that the prosecutor's opening statement, indicating repeatedly to jury that defendant "will tell you" about his involvement in the alleged offenses, improperly commented on the defendant's failure to testify, and the comments were not harmless error. In that case, the prosecutor was likely referring to the defendant's police statement but the prosecutor did not correctly articulate that in opening.

*Practice pointer: Remember that a defendant's police statement, or statement to another person, is not the equivalent of testifying. When referring to a statement made by the defendant, do not tell the jury that the defendant "will testify;" instead, simply say "you will hear that the defendant said...."

In Walls v. State, 228 Md. App. 646 (2016), the Court of Special Appeals held that the trial court did not abuse its discretion in denying the defendant's request for a mistrial based on a prosecutor's inadvertent misstatement during opening statement. In opening, the prosecutor mistakenly told the jury that they would hear the defendant "testify" that he just started swinging the knife. The trial judge proposed a curative comment that the defendant declined.

2. Asserting Facts which are Never Established

In Johnson v. State, 229 Md. App. 159 (2016), it was the opening statement by defense counsel that caused a mistrial. During opening statement defense counsel presented the jury with an extremely detailed exculpatory narrative, including no less than 26 separate factual assertions. The problem was that defense counsel never established these assertions either on cross examination of State witnesses or on direct examination of defense witnesses.

After the defense rested, the State moved for a mistrial asserting that the State's case was irreparably prejudiced. The trial court carefully considered possible remedies including either an instruction to the jury or allowing the State greater latitude in closing argument. The trial court determined that neither could be effective and the court granted the State's motion for a mistrial.

The Court of Special Appeals held that the trial court acted within its discretion and that principles of double jeopardy did not bar a new trial.

3. Referencing Inadmissible Facts

In Simmons v. State, 436 Md. 202 (2013), defense counsel's improper comment in opening statement as to defendant's willingness to take a lie detector test to prove his innocence created a manifest necessity for a mistrial, such that re-trial would not violate the Double Jeopardy Clause.

II. Closing Arguments

A. The Golden Rule Argument

Although the "Golden Rule" is a great rule to live by (do to others as you want them to do to you), it is a horrible trial strategy because it improperly appeals to the jury by asking them to place themselves in the shoes of someone else (usually the victim or a party to the case).

In Leach v. Metzger, 241 Md. 533 (1966), the plaintiff's counsel told the jury to "consider this situation as though your wife was involved and award damages as if it had been her involved in the accident." Defense counsel objected. The trial court instructed the jury that the argument was not proper argument and that the jury should consider the elements to find what is fair and reasonable.

In this case the Court of Appeals did not find reversible error because there was only one improper statement by the plaintiff's counsel, the trial court immediately instructed the jury to disregard the argument, and the trial court reinstructed the jury as to the correct measure of damages.

This was the first Maryland case to hold that arguments which urge jurors to deal with a party as they would wish to be dealt with if they were in such a position, are improper. Such arguments invite jurors to disregard their oaths and to become non-objective viewers of the evidence.

*Practice pointer: If you make a mistake, only make it once, then promptly ask the court to instruct the jury to disregard the argument. If necessary, ask the court to reinstruct the jury as to the correct standard that jury is being asked to consider.

In Lawson v. State, 389 Md. 570 (2005), the defendant was convicted of two counts of second degree rape, attempted second degree rape, and second degree assault. Among the various types of "improper comments [that] continued unabated" were the following golden rule arguments by the State: "I want you to put yourself in the shoes if you have an eight-year-old niece, daughter, cousin, close friend...I urge you, while you are putting yourself in the shoes of someone who has had a child come to them..." Overall, the Court of Appeals found that the cumulative effect of the improper comments, which were not cured by a contemporaneous instruction, was likely to have improperly influenced the jury and not be harmless.

In Anderson v. State, 227 Md. App. 584 (2016), the Court of Specials Appeals held that the trial court's order striking a portion of defense counsel's closing argument that invited jurors to put themselves or family members in the place of the defendant was not an abuse of discretion.

B. "Cleaning up the Streets"

Prosecutors, you are doing the community a great service when you secure the conviction of a cold-hearted career criminal, but only if you secure the conviction properly. Otherwise, you run the risk of having the case thrown out or the conviction overturned on appeal.

Hill v. State, 355 Md. 206 (1999), is a case out of Prince George's County in which the prosecutor gave a "soup to nuts performance" full of inappropriate remarks.

Beginning with opening statement the prosecutor commented that:

- "Society full of people like Mr. Hill who carry guns and drugs;"

- "One only needs to read the paper to know what that does to our community;"

- "What happens next is why you are here and why you've been chosen to send a message to protect our community;"

- "In the end, we're going to ask you to do the just thing, the right thing, the thing that protects all of us and keeps this community safe."

In closing argument the prosecutor continued:

- "[W]e mentioned the community of which you are a part. It is your community, and it is important. What you do here today sends a message, whatever you decide. And make no mistake about it; Delton Hill will go back and tell his cronies and buddies about what is going on here today."

- "So, what you do here today is extremely important. Perhaps defense counsel is lucky enough to go home to Potomac or River Road- but people here in Prince George's County are in crisis. Whether you're in Greenbelt, Accokeek, Adelphi, Largo, it doesn't matter, because Prince George's County is in a crisis."

- "People wonder why we can't get 4-star restaurants here."

- "People like Delton Hill. This case is about accountability. Will he be held accountable, or is it okay to say, do what you want? It's your community. No, it's not your community; it's our community. This is your turn to do something about it."

The Court of Appeals held that the prosecutor's repeated statements in closing argument that the jury should convict the defendant in order to preserve the quality of their own communities were wholly improper. The Court judged the prosecutor's conduct in light of the fundamental governing precept that a prosecutor is not the representative of an ordinary party to a controversy

[B]ut of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all...and whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done...while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

The Court took account of the persistency of the prosecutor's conduct, continuing to make these remarks time and again despite the trial court's rulings that the remarks were improper. The Court feared that the jury may have come to regard the trial court's rulings as rote window dressing.

Beads v. State, 422 Md. 1 (2011) was another case that warranted reversal. In that case the prosecutor's comments to the jury to "say Enough!" was an improper exhortation that implored the jurors to consider their own personal safety and therefore violated the prohibition against the "golden rule" argument. Reversal would not have been required if the danger of unfair prejudice resulting from this argument had been removed by the prompt and decisive action of the trial court. But the record shows that the trial court erroneously overruled the objections interposed by Beads' trial counsel.

Lee v. State, 405 Md. 148 (2008) was also a case in which improper remarks constituted reversible error. In Lee, the prosecutor argued to the jury that the victim's testimony that the defendant did not shoot him was not credible and that the victim was following "the law of the streets." The prosecutor also argued that the jury should protect their community and clean up the streets. Lastly, the prosecutor argued that the jury should teach the defendant a lesson not to abide by the law of the streets in settling disputes. These comments improperly alluded to facts not in evidence and violated the Golden Rule Argument.

In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974) which was a consolidation of Wilhelm and Cook, improper comments made in each of the cases were not rendered reversible errors.

In Wilhelm, where the defendant was charged with assault to murder a police officer, the complaint was over the prosecutor's informing the jury, in opening statement, that "this is your occasion to do something about" the "hue and cry of police protection." Wilhelm moved for mistrial based on that one remark.

The Court of Appeals affirmed the conviction noting that there was just the one improper remark that was not repeated, that it was not the kind of remark "screaming out for the forceful interdiction of the trial judge," and that the evidence of Wilhelm's guilt was overwhelming.

In Cook, the complaint in this murder case was the prosecutor's informing the jury, in closing argument, that over 300 people had been murdered in Baltimore City in the last year, that an unknown number of persons had been robbed with weapons, and that the victims were most often people unable to fight back. Cook's motion for mistrial also was denied.

The Court of Appeals also affirmed this conviction because the prosecutor's remark about the number of murders and armed robberies in Baltimore City was, more or less, a matter of common knowledge or general notoriety. Also, the prosecutor is free "to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments...." The Court continued that the prosecutor "may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses," and, in that regard, "may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions."

Wilhelm confirms that "not every ill-considered remark made by counsel, even during the progress of the trial, is cause for challenge or mistrial" and that "[w]hat exceeds the limits of permissible comment depends on the facts in each case." Even when a clearly improper remark is made, a mistrial is not necessarily required if the trial court took any appropriate action, such as informing the jury that the remark was improper, striking the remark and admonishing the jury to disregard it.

However, Court of Appeals did caution that counsel is not permitted to comment on facts not in evidence or state what could have been proven, and that "[p]ersistence in such course of conduct may furnish good grounds for a new trial."

C. Appealing to the Jury's Fears & Prejudices

In Lawson v. State, 389 Md. 570 (2005), the prosecutor repeatedly made improper comments across the board. With respect to appealing to the jury's fears and prejudices, the prosecutor did not have to call the defendant a "monster" to get his improper message across. During rebuttal closing, the prosecutor said:

- "What does a monster look like? Looks like different things to different people. What does a sexual molester look like? He looks like someone you know. He looks like your uncle, your brother, your sister"

- "A child molester looks like anybody we trust"

The Court of Appeals said that prosecutors should not appeal to prejudices of the jury. Under the circumstances, it was not necessary for the prosecutor to specifically name the defendant in order for the jury to understand that a defendant is the person the prosecutor is describing. This was inappropriate and the cumulative nature of the prosecutor's improper comments required reversal.

In Walker v. State, 121 Md.App. 364 (1998), the Court of Special Appeals addressed the impropriety of the prosecutor's closing argument calling the defendant an "animal" and a "pervert." The Court of Special Appeals found that the nature of the evidence presented gave rise to the conclusion that the actions of the defendant were perverse, however, given such odious offenses, it was ironic to resort to excessive appeals to passion. The Court found that the reference to the silent screams and "pervert" considered in conjunction with the characterization of Walker as an "animal," exceeded the bounds of proper comment.

In Donaldson v. State, 416 Md. 467 (2010) the Court of Appeals held that certain comments by the prosecutor during closing argument constituted an improper appeal for the jury to convict the defendant to combat drug dealing and drug use generally. It was improper to say that drug dealers are "the root of all evil" and to call the defendant "the problem." These comments constituted reversible error.

In McFadden v. State, 197 Md. App. 238, 261 (2011), rev'd on other grounds by State v. Stringfellow, 425 Md. 461 (2012), the Court of Special Appeals found that the defendants were adversely affected by the cumulative effect of numerous improper remarks by the prosecutor including a reference to one defendant's invocation of right to remain silent, a reference to "the propaganda people in Nazi Germany," and an argument that no prosecutor or homicide detective got paid more if there was a conviction.

D. Opened Door Doctrine/Burden Shifting/Defendant's Failure to Testify

Evidence admitted under the "opening the door" doctrine is generally offered to meet: (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection. Terry v. State, 332 Md. 329 (1993).

Prosecutors are entitled to comment in closing argument on matters raised by defense counsel under the "opened door" doctrine. Mitchell v. State, 408 Md. 368 (2009).

The opened door doctrine is limited, however, by the constitutionally-based prohibition against "burden shifting" which derives from the landmark Supreme Court decision in Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Supreme Court held that a prosecutor may not comment upon a defendant's failure to testify because to do so would violate the defendant's Fifth Amendment rights. See also, Smith v. State, 367 Md. 348, 358, 787 A.2d 152 (2001) (holding that the prosecutor's comment during closing argument violated Article 22 of the Maryland Declaration of Rights); see also Md.Code (2013 Repl.Vol.) § 9-107 of the Courts and Judicial Proceedings Article.

In Mitchell, during closing argument, defense counsel called the jury's attention to the fact that the State had not called six individuals who were present at the scene of the crime, even though the State had listed them as potential witnesses in its voir dire. Defense counsel further argued: "Let's bring in Henderson, Corprew, and Man Man into the courthouse for inspection..."

In rebuttal, the prosecutor stated:

If defense counsel thought that their being here would have shown that something we presented was so contradictory to something about them, he could have brought them in as well. The defense has subpoena power just like the State does. You can't say why didn't the State present a witness, when they had an equal opportunity to present it to you, and then try to say, well, it wasn't presented. They had an equal right to present it if they thought it would contradict something we presented.

The Court of Appeals did not find this response improper or impermissible burden shifting. When defense counsel argued the relevancy of the witnesses absences and the weakness in the State's case, this maneuver "opened the door" for the prosecutor to offer an explanation as to why those witnesses were not present. Moreover, defense counsel's choice of language in stating "Let's bring in" these other witnesses for inspection, as if the jurors were entitled to see the witnesses and were prevented from doing so by the State, called for a response by the State drawing attention to Mitchell's subpoena power.

Please note that this holding was a "narrow one": The prosecutor's remarks calling attention to the defendant's subpoena power were a tailored response to defense counsel's assertion that all the potential witnesses should have been brought into the courtroom given what defense counsel identified as a weakness in the State's case.

In Wise v. State, 132 Md. App. 127 (2000), defense counsel in opening statement, made a number of assertions about what the evidence would show, and then failed to introduce support for certain assertions. In closing, the prosecutor "dr[ew] the jury's attention to the fact that defense counsel had failed to fulfill his prediction in opening statement as to what he would develop at trial."

On appeal, Wise argued that the prosecutor's closing argument "improperly shifted the burden of proof to Wise by asking the jurors to consider Wise's failure to call witnesses in his defense or to testify in his own defense."

The Court of Special Appeals addressed whether the prosecutor's comments constituted impermissible burden shifting:

Maryland prosecutors, in closing argument, may not routinely draw the jury's attention to the failure of the defendant to call witnesses, because the argument shifts the burden of proof. On the other hand, a defense attorney's promising in opening statement that the defendant will produce evidence and thereafter failing to do so does open the door to the fair comment upon that failure, even to the extent of incidentally drawing attention to the defendant's exercising a constitutional right not to testify.

The Court of Special Appeals concluded that the prosecutor's comments were a reasoned and justified response to the excesses of the defendant's opening statement and as such did not violate the defendant's constitutional rights. While a prosecutor in closing argument may address assertions made by defense counsel in opening statement,

Such comments are impermissible whether they be intended to call attention to the defendant's failure to testify or be of such character that the jury would naturally conclude that it was a comment about the failure to testify. Calling attention to the fact that a defendant failed to present evidence sails dangerously close to the wind.

The Court distinguished comments about a defendant's failure to explain by testifying and comments about the failure of the defendant to explain through other witnesses.

In Lawson v. State, 389 Md. 570 (2005), the prosecutor's statements that the defense had to prove that the victim was lying tended to shift the State's burden to prove all the elements and therefore was inappropriate.

In Shoemaker v. State, 228 Md. 462 (1962), the prosecutor alluded to the fact that Shoemaker would be eligible for parole if convicted and that was inappropriate because it shifted responsibility for finding guilt onto another body after conviction. The Court of Appeals found that the argument was likely to have improperly influenced to the prejudice of the accused.

In Marshall v. State, 415 Md. 248 (2010), the Court of Appeals held that the prosecutor's statements during closing arguments about the defendant's decision not to testify impinged on the defendant's privilege against self-incrimination, and defense counsel's closing argument did not justify the prosecutor's comments on the defendant's decision not to testify.

E. Improper Vouching/Attacking Credibility

In Spain v. State, 386 Md. 145 (2005) Spain was convicted of distribution of CDS, a case which was largely supported by the arresting officer. During closing argument, the prosecutor stated that the "police officer did not have a motive to lie because he would have had to risk everything he worked for, perjured himself, engaged in a lot of lying."

The Court of Appeals disapproved of certain techniques such as vouching for a witness's credibility because it infringes on a defendant's right to a fair trial. The Court found that "[v]ouching typically occurs when a prosecutor 'place[s] the prestige of the government behind a witness through personal assurances of the witness's veracity...or suggest[s] that information not presented to the jury supports the witness's testimony.'" See also Walker v. State, 373 Md. 360, 396 (2003) (characterizing the making of "suggestions, insinuations, and assertions of personal knowledge" as to a witness' credibility improper prosecutorial vouching).

The Spain Court did not find reversible error since the statements did not mislead or influence the jury. The Court considered three factors on appeal: (1) the severity of the remarks, (2) the measures taken to cure any potential prejudice, and (3) the weight of the evidence against the accused.

With respect to the first factor, the Court found that the prosecutor's statement was an isolated event that did not permeate the trial. With respect to the second factor, the Court found that the trial judge did not acknowledge that the comments were improper but the trial court emphasized to the jury that they were arguments and not evidence. With respect to the third factor, the Court did not find that the evidence against Spain was overwhelming. Nonetheless, the Court found that the statements were not so severe that their admission denied Spain a fair trial.

The Spain Court noted that mere commentary about a witness's credibility, without some assertion of outside personal knowledge about the witness does not constitute improper prosecutorial vouching. See Stone v. State, 178 Md.App. 428, 450-51 (2008) (rejecting appellant's assertion of plain error regarding prosecutor's remark that the witness "in my estimation was a very credible witness"; the prosecutor did not assert any personal knowledge such as "I know the witness. We went to the same high school. The witness would never lie.") See also U.S. v. Walker, 155 F.3d 180, 187 (3rd Cir. 1998) (where a prosecutor argues that a witness is being truthful based on testimony given at trial, and does not assure the jury that the credibility of the witness is based on his own personal knowledge, the prosecutor is engaging in proper argument and is not vouching).

In Degren v. State, 352 Md. 400, 722 A.2d 887 (1999), the prosecutor argued in rebuttal that "nobody in this country has more reason to lie than a defendant in a criminal trial." The Court of Appeals found that this remark was improper, unprofessional and injudicious. But, the remark did not bear directly on Degren's guilt or innocence, and the comments were made in response to the defendant's closing arguments that State's witnesses had various reasons to lie.

The Court of Appeals confirmed that not every improper remark necessarily mandates reversal, that reversal is required only when it appears that the prosecutor's remarks actually misled the jury or were likely to have misled or influenced the jury to the defendant's prejudice, and that that determination lies within the discretion of the trial court.

In Donaldson v. State, 416 Md. 467 (2010), the Court of Appeals held that certain comments by the prosecutor during rebuttal argument relied on facts not in evidence and constituted improper vouching of two testifying detectives. The improper comments were that the two detectives who testified against the defendant would not lie because they wanted to keep their jobs and that what got the detectives to keep going with their jobs was their credibility and integrity. The Court held that the prosecutor's improper comments constituted reversible error.

In Sivells v. State, 196 Md.App. 254 (2010), the Court of Special Appeals held that improper comments in this case amounted to reversible error. The prosecutor engaged in improper vouching for the credibility of police witnesses. Defense counsel improper argued that the prosecution was one of the lamest he had ever seen.

F. Describing Standards of Proof

In Ingram v. State, 427 Md. 717 (2012), the Court of Appeals held as a matter of first impression, that the trial court did not abuse its discretion in prohibiting defense counsel from describing extraneous standards of proof, and error, if any, from the prohibition was harmless.

Prior to closing argument, on motion by the prosecutor, the trial court prohibited defense counsel from including in his argument an explanation of the significance of the legal thresholds of suspicion, reasonable articulable suspicion, probable cause, and a "tie," by way of contrasting these thresholds along the continuum of standards leading to the one in play, proof beyond a reasonable doubt.

The trial court did allow defense counsel to explain for the jury, for the same purpose, the thresholds of preponderance of the evidence and clear and convincing evidence, as well as render a lengthy dissertation on the significance of the burden of beyond a reasonable doubt.

*Practice Pointer: This case still allows for a description of preponderance of the evidence, clear and convincing evidence, as well as the significance of proof beyond a reasonable doubt.

*Practice Pointer: In the Fourth Circuit, the law is well-settled that a district court may restrict counsel from arguing definitions of reasonable doubt. United States v. Crockett, 813 F.2d 1310, 1317 (4th Cir. 1987).