- A prosecutor may argue all facts in evidence and all reasonable inferences drawn from them, and may inform the jury of the correct law applicable to the case.
- A prosecutor may also argue the credibility of witnesses, use admitted exhibits, respond to the defendant’s arguments, and remind the jury of the importance of their solemn duty.
- In some areas, such as when asking the jury to imagine the victim’s pain and suffering or explaining the possible punishment the defendant faces, care must be taken not to exceed the limited scope of what is allowed.
The Facts and the Law
A prosecutor may argue all the facts in evidence and all reasonable inferences drawn from those facts. See State v. Phillips, 365 N.C. 103 (2011); State v. Wilkerson, 363 N.C. 382 (2009).
The prosecutor may also argue all the relevant law to the jury, and may even reference legal holdings from published opinions, but he or she may not go so far as to give the specific facts of those cases and argue that a particular verdict is mandated in the present case based on what happened in the prior case. See G.S. 7A-97; State v. Britt, 285 N.C. 256 (1974) (counsel may read a statute or other rule of law to the jury if it is relevant to the case, including the statutory punishment for charged offense); State v. Thomas, 350 N.C. 315 (1999); State v. Gardner, 316 N.C. 605 (1986); State v. Wright, 304 N.C. 349 (1981); State v. Simmons, 205 N.C. App. 509 (2010) (error for prosecutor to directly compare facts of the case to another DWI case, read passages from that opinion, and then argue that the jury in the present case should reach the same conclusion).
On the basis of his or her analysis of the relevant law and the facts of the case, the prosecutor may argue to the jury how they should decide a given issue. See G.S. 15A-1230(a); State v. Phillips, 365 N.C. 103 (2011).
In addition to the general principles described above, the following areas have been specifically upheld as proper topics for the state’s closing argument:
- Credibility of Witnesses
Although a prosecutor may not express a personal opinion on any matter, he or she may argue to the jury that a witness is (or is not) credible, and explain the reasons why the jury should reach that same conclusion. See State v. Wilkerson, 363 N.C. 382 (2009) (“the prosecutor did not personally vouch for [the witness’s] veracity but instead provided jurors reason to believe [the witness] by arguing that her testimony was truthful because it was corroborated”); State v. Taylor, 362 N.C. 514 (2008) (while a prosecutor should not “insinuate that [an expert] witness would perjure himself or herself for pay, it is entirely proper for the prosecutor to point out that the witness' compensation may be a source of bias”) (internal citations omitted); State v. Augustine, 359 N.C. 709 (2005) (“prosecutors are allowed to argue that the State's witnesses are credible”); State v. Anderson, 322 N.C. 22 (1988) (“the State may comment on any contradictory evidence as a basis for the jury's disbelief of a witness's testimony”). But see State v. Potter, 69 N.C. App. 199 (1984) (improper for state to go outside the record and argue that law enforcement officers could be fired from their jobs and lose their pensions if it were to be discovered that they had lied).
- Using Exhibits
Counsel is permitted to make proper use of exhibits during closing arguments, as long as the exhibit was introduced during the trial. See State v. Johnson, 214 N.C. App. 436 (2011) (state was permitted to play an enhanced frame-by-frame version of a video during closing argument and jury deliberations, since the original video had been presented in the state’s case); State v. Oliver, 302 N.C. 28 (1981) (using gun which was introduced as an exhibit was proper); State v. Oliver, 309 N.C. 326 (1983) (state’s use of four photographs of victim’s bodies during argument in capital resentencing hearing showing manner in which victims were shot, location of gunshot wounds, and the crime scene was proper).
- Responding to Defendant’s Closing Argument
Counsel is permitted to respond to claims and arguments made in the closing statement by the opposing party - particularly where the defense ‘opens the door’ to an issue. See State v. Elliott, 344 N.C. 242 (1996) (comments in closing are not viewed in “an isolated vacuum”); State v. Perdue, 320 N.C. 51 (1987) (prosecutor properly permitted to comment about what a “good parent” would have done when confronted by a law enforcement, after defense counsel had argued that defendant was a “good mother”); State v. Davis, 305 N.C. 400 (1982) (when defense counsel attacked the credibility of the testifying law enforcement officers, prosecutor properly responded by defending the performance of the officers and the manner in which the state presented its case); State v. Fearing, 304 N.C. 471 (1981) (prosecutor properly explained that it was not allowed to call defendant’s wife as a witness, since defense counsel had argued that the state had failed to call her to testify).
- Responding to Defendant’s Opening Argument
A prosecutor in jury argument may properly comment on the defense counsel’s opening statement, and point out the defense’s failure to produce evidence to support his or her assertions in the opening statement -- even if the defendant did not testify at trial. State v. Call, 349 N.C. 382, 421 (1998); State v. Taylor, 344 N.C. 31, 42 (1996); State v. Harris, 338 N.C. 211, 229 (1994); State v. Anderson, 200 N.C. App. 216 (2009). However, prosecutors must also be mindful of the limitations on commenting on the defendant’s silence; for more information see the next entry regarding Closing Arguments: Impermissible Topics.
- Role of the Jury
Counsel may argue that jury is the “voice and conscience” of the community, that it needs to “send a message” about the crime, or that it needs to “do justice” for a victim. See State v. Shelton, 263 N.C. App. 681 (2019); State v. Barden, 356 N.C. 316 (2002); State v. Nicholson, 355 N.C. 1 (2002); State v. Prevatte, 356 N.C. 178 (2002). However, the prosecutor may not argue that the jury should “lend an ear” to the community or decide the case based on community sentiment – in other words, “the jury may speak for the community, but the community cannot speak to the jury.” Barden, 356 N.C. at 367 (emphasis added). See also State v. Scott, 314 N.C. 309 (1985) (in manslaughter and DWI prosecution, argument that there was a great deal of public sentiment against driving and drinking was improper, but argument that “the buck stops here” or that the jurors had become the “judges” in the case was proper).
- Asking Jurors to Imagine the Victim’s Suffering
Prosecutors are permitted to ask jurors to imagine the pain, fear, and trauma experienced by the victim. See State v. Jones, 358 N.C. 330 (2004) (no impropriety when the prosecutor repeatedly asked the jury to imagine what the victims were thinking); State v. Fletcher, 354 N.C. 455 (2001) (not improper for prosecutor to ask the jurors to “imagine” the victim's fear and the pain of the stabbings); State v. Artis, 325 N.C. 278 (1989), vacated and remanded on other grounds, 494 U.S. 1023 (1990) (no error where prosecutor asked jurors to try to hold their breath for four minutes to “understand the dynamics of manual strangulation” suffered by the victim).
However, prosecutors may not go so far as to ask the jurors to actually imagine themselves as the victim. See State v. Roache, 358 N.C. 243 (2004) (“The State is not permitted to make arguments asking the jurors to put themselves in the victims' places,” but finding no error where prosecutor pointed out random nature of the crime and the fact that defendants “could have just as easily have ended up in your driveway or mine”); State v. Prevatte, 356 N.C. 178 (2002) (“State's comment that Cindy could be related to a member of the jury appears to have been an effort to show Cindy was a typical community member. There is no indication the State was urging the jurors to put themselves in Cindy's shoes”); State v. Warren, 348 N.C. 80 (1998); State v. Perkins, 345 N.C. 254 (1997); (“we will not condone an argument asking jurors to put themselves in place of the victims. […] However, this Court has repeatedly found no impropriety when the prosecutor asks the jury to imagine the fear and emotions of a victim.”); see also State v. McCollum, 334 N.C. 208 (1993) (improper to ask jurors “to imagine the victim as their own child”).
- Punishment to Be Imposed
Counsel are permitted to mention the punishment that can be imposed for the crime charged, or explain the reasons why the jury is being asked to consider an aggravating factor and the fact that it may result in a higher punishment than defendant would otherwise face. See State v. Smith, 335 N.C. 539 (1994) (defense counsel had right to mention punishment for first-degree murder and urge jury to give careful consideration to the case because of the severity of the punishment); State v. Buckner, 342 N.C. 198 (1995) (defense counsel had right during guilt-innocence phase of capital trial to mention punishment for first-degree murder); State v. Walters, 294 N.C. 311 (1978) (defendant has right to inform jury of punishment that may be imposed by reading statutory provisions concerning punishment for first- and second-degree murder and manslaughter). See also G.S. 15-176.9 (if conviction of an offense may result in loss of the defendant’s driver’s license, either party may inform jury of that possibility). Additionally, in a capital murder case, counsel may inform the jury that the alternative to a death sentence is life in prison without parole. See Simmons v. South Carolina, 512 U.S. 154 (1994).
However, due to the inherent complexity of sentencing laws and the uncertainty at the time of closing arguments as to exactly which offenses or aggravating/mitigating circumstances will be before the judge when sentencing takes place, counsel should generally avoid making any specific predictions as to what sentence the defendant will “actually” receive. Even an innocent miscalculation can potentially lead to reversible error. See State v. Lopez, 363 N.C. 535 (2009) (prosecutor’s description of defendant’s likely sentence was misleading and therefore error, but found to be harmless); State v. Wilson, 139 N.C. App. 544 (2000) (trial judge did not err in prohibiting defense counsel in jury argument during trial of felonious breaking or entering and felonious larceny from informing jury of punishment if defendant was later found to be a habitual felon, since defendant is only permitted to inform jury of punishment that may be imposed on the conviction of the crime for which he or she is being tried); State v. Barber, 93 N.C. App. 42 (1989) (defense lawyer during DWI jury argument said that if defendant was convicted he was subject to imprisonment for two years – prosecutor’s response that defendant would serve no more than two months and ten days of that time was improper, arguments about parole are not permitted). See also State v. Dalton, 369 N.C. 311 (2016) (finding prejudicial error where prosecutor inaccurately exaggerated the likelihood that defendant would be quickly released from civil commitment if found not guilty by reason of insanity).
Furthermore, counsel may not argue that the jury should acquit or convict a defendant based on the severity (or lack) of punishment that will be imposed for the offense. See State v. McMorris, 290 N.C. 286 (1976) (counsel may inform jury of statutory punishment for crime to impress on jury the gravity of its duty, but may not argue that jury ought to acquit because of severity of punishment, that punishment is inappropriate, or possible outcome of appeals, paroles, and the like); State v. Wilson, 293 N.C. 47 (1977) (defense lawyer’s argument that identification evidence was inadequate given that the punishment was so severe was improper); State v. Jones, 296 N.C. 495 (1979) (prosecutor’s argument minimizing jury’s role by stating that judicial or executive review would correct any erroneous verdict was improper). See also State v. Worthington, 84 N.C. App. 150 (1987) (arguing to jury that defendant could have avoided mandatory minimum drug sentence by pleading guilty and offering substantial assistance was improper).
- Capital Sentencing Hearings
The prosecutor may:
- Point out the reasonably comfortable quality of life the defendant will have if allowed to serve life in prison; see State v. Holden, 346 N.C. 404 (1997); State v. Smith, 347 N.C. 453 (1998);
- Argue that death is the only way to be entirely certain defendant will never harm anyone else; see State v. Johnson, 298 N.C. 355 (1979); or
- Describe the impact that the sentence will have on the victim’s family; see State v. Conaway, 339 N.C. 487 (1995).
However, the prosecutor may not:
- Argue that death is needed as a “deterrent” to others; see State v. Hill, 311 N.C. 465 (1984); State v. Kirkley, 308 N.C. 196 (1983); State v. Cherry, 298 N.C. 86 (1979); or
- Describe the automatic appellate review process of all death sentences under G.S. 15A-2000(d) and the possibility of a reduction to life imprisonment, future parole eligibility, etc.; see State v. Jones, 296 N.C. 495 (1979).