- Counsel may argue all relevant law and all facts in evidence and reasonable inferences drawn from them, but may not argue matters outside the record or express personal opinions and beliefs.
- Defense counsel may concede defendant’s guilt during closing arguments, but only if the defendant has expressly consented to this strategy.
- The trial judge may respond to improper arguments by sustaining an objection (or intervening on the court’s own motion, if warranted) and taking appropriate remedial measures such as giving the jury a curative instruction to disregard the argument.
General Guidelines for Closing
Counsel is usually given wide latitude in the substantive content of closing arguments. Counsel may generally argue to the jury all of the facts in evidence, as well as all reasonable inferences that could reasonably be drawn from the evidence, but may not argue improper subjects such as facts not in evidence or personal opinions or beliefs. See State v. Covington, 290 N.C. 313 (1976) (“We have consistently held that counsel must be allowed wide latitude in the argument of hotly contested cases. He may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case. . . .”).
The Rules of Professional Conduct, Rule 3.4(e), likewise provides that a lawyer in a trial shall not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, ask an irrelevant question that is intended to degrade a witness, or state a personal opinion as the justness of a cause, the credibility of a witness, . . . or the guilt or innocence of an accused.” See also G.S. 15A-1230 (“Limitations on argument to the jury” – counsel may not become abusive, express personal beliefs or experiences, or argue matters outside the record, but may argue any position or conclusion based on analysis of the evidence).
For more information on specific topics which may be argued in closing, see the related entry on Permissible Topics.
For more information on specific topics which may not be argued in closing, see the related entry on Impermissible Topics.
Defense Counsel Conceding Defendant’s Guilt
During the closing argument (or at any other time), defense counsel may decide that it is in the defendant’s best interest to admit guilt to all or part of the crime alleged. For example, the defense may want to admit possession of a controlled substance but deny the intent to sell it, or admit to committing a robbery but deny that the defendant was armed. This strategy is permissible, but in general there must be a showing on the record that the defendant has consented to the admission or else it will be deemed per se ineffective assistance of counsel and result in the conviction being overturned. See McCoy v. Louisiana, 138 S. Ct. 1500 (2018); State v. Harbison, 315 N.C. 175 (1985); State v. Maready, 205 N.C. App. 1 (2010).
There are two important exceptions to this rule, under which an unconsented-to admission by defense counsel may not be deemed reversible error.
First, an unconsented-to admission to a different offense that is neither charged in the case nor a lesser-included offense of any charged offense does not constitute a Harbison error. See State v. Wilson, 236 N.C. App. 472 (2014) (no Harbison error where defense counsel argued that defendant’s conduct made him guilty of assault by pointing a gun, which was not charged, but maintained that defendant was not guilty of murder, as charged).
Second, an unconsented-to admission only as to particular elements of the offense, while still maintaining that the defendant is not guilty of charged offense, is not presumed to be a constitutional violation under Harbison; instead, the defendant must show both error and prejudice under a traditional ineffective assistance of counsel standard. See State v. Fisher, 318 N.C. 512 (1986) (no presumed error where defense counsel made unconsented-to admission of malice element, but still argued to the jury that defendant was not guilty of murder); State v. Womack, 211 N.C. App. 309 (2011) (finding no error where “counsel admitted that Defendant had three prior felony convictions, but he never admitted that Defendant had attained habitual felon status”).
Finally, although the scope of this entry only covers closing arguments, prosecutors should also be aware that the reasoning behind Harbison has been applied in other situations where defense counsel makes an admission or key strategic decision which is contrary to the defendant’s wishes. See State v. Payne, 256 N.C. App. 572 (2017) (error for counsel to seek pretrial disposition finding defendant not guilty by reason of insanity over defendant’s express desire to go to trial); State v. Ali, 329 N.C. 394 (1991) (when defendant and counsel reach an “absolute impasse” on a tactical decision, such as whether to strike a prospective juror, it is error for counsel to disregard the defendant’s lawful instructions).
Get a Harbison inquiry on the record
To avoid the possibility of issues on appeal, prosecutors should always make sure that judge asks (before both the opening and closing arguments) whether defense counsel plans to admit guilt. If the judge does not do so and the prosecutor has reason to believe that defense counsel may be planning to admit guilt, the prosecutor should prompt the judge to ask defense counsel whether he or she will be admitting guilt. If so, the judge should determine, on the record, whether the defendant consents to this strategy. If no inquiry was conducted and counsel unexpectedly admits guilt during trial, the trial judge should excuse the jury and determine, on the record, whether the defendant consents to the admission. If the defendant does not consent, a mistrial may be required.
Judge’s Duty to Correct Improper Argument
- If the Defense Objects
If the defendant objects to the prosecutor’s jury argument as improper, the appellate courts will review the judge’s ruling (and corrective measures taken, if any) on an abuse of discretion standard. See State v. Jones, 355 N.C. 117 (2002). If the defendant fails to make a timely objection then it is waived, and only subject to review as outlined below. See State v. Young, 291 N.C. 562 (1977).
- If There is No Objection
If the defendant fails to object, the appellate court will be limited to evaluating whether the argument was so grossly improper that the trial court erred by failing to intervene ex mero motu, or “of its own accord.” See State v. Hamlet, 312 N.C. 162 (1984) (prosecutor’s argument was improper, but no so grossly improper that it was error for the court not to intervene); State v. Boyd, 311 N.C. 408 (1984); State v. Kirkley, 308 N.C. 196 (1983).
- Corrective Measures
If the court determines, either in response to an objection or on its own motion, that an improper argument has been made, there are several remedies available to the court, depending on the severity of the comment and the judge’s discretion as to what is required to correct the error. Possible remedies include, but are not limited to: (i) admonishing the attorney to refrain from making such arguments; (ii) requiring the attorney to retract the argument; (iii) immediately giving a prompt and explicit curative instruction to the jury, directing them to disregard the comment and not factor it into their decision; (iv) repeating the curative instruction during the final jury charge; or (v) granting a mistrial. See State v. Jones, 355 N.C. 117 (2002); Wilcox v. Glover Motors, Inc., 269 N.C. 473 (1967) (listing several possible methods by which a judge may correct improper argument).