228.4Closing Arguments

Impermissible Topics
Last Updated: 05/28/24

Key Concepts

  • Prosecutors may not argue facts that are not in evidence, express personal opinions or beliefs, give incorrect or misleading statements of law, or argue for a conviction on improper grounds such as general deterrence or racial bias.
  • Prosecutors are also generally prohibited from making personal attacks, religious references, appeals to sympathy or fear, or commenting on defendant’s exercise of the right to remain silent.
  • The use of insults and outright name-calling designed to inflame the jury is always prohibited, but some arguably disparaging phrases or analogies may be allowed if they are genuinely relevant and helpful to the jury’s understanding of the facts or the law.

Impermissible Content – Overview

Counsel are not permitted in their closing arguments to become abusive or insulting, and must always conduct themselves with dignity and propriety. See N.C. Gen. R. Pract., Rule 12 (“Courtroom Decorum”); State v. Matthews, 358 N.C. 102 (2004) (prosecutor's reference to defendant during closing argument as “monster,” “demon,” “devil” and other names exceeded scope of permissible argument); State v. Jones, 355 N.C. 117 (2002) (court should have intervened ex mero motu when state disparaged defendant by engaging in name-calling and personal insults, including derision of defendant as “lower than the dirt on a snake's belly” and as “this quitter, this loser, this worthless piece of ... [who's] as mean as they come”); State v. Gillikin, 217 N.C. App. 256 (2011) (prosecutor's closing argument calling rape defendant a guilty liar was grossly improper, undignified, and intended solely to inflame the passions of the jury).

Additionally, counsel must always conduct themselves with candor and fairness, and may not, therefore, engage in conduct such as intentionally misstating the law or the facts, expressing personal opinions, or mischaracterizing witnesses’ testimony or arguments of opposing counsel. See, e.g., State v. Phillips, 365 N.C. 103 (2011) (prosecutor’s statement of personal belief that defense expert was “wholly unbelievable” was improper); State v. Bass, 121 N.C. App. 306 (1996) (prosecutor improperly argued facts that the prosecutor knew was untrue).

Impermissible Content – Specific Topics

In addition to the general guidance described above, the following areas have been specifically considered by the appellate courts and found to be improper topics for closing argument:

  1. Matters Not in Evidence

Neither party may read the indictment to the jury. G.S. 15A-1221(b). Counsel may not argue other matters outside the record (e.g., facts not in evidence or legal rulings made by the judge) other than matters which are the proper subject of judicial notice. See G.S. 15A-1230(a); State v. Jones, 355 N.C. 117 (2002) (prosecutor improperly made thinly-veiled reference to defendant’s crimes as linked to Columbine school shootings and Oklahoma City federal building bombing); State v. Allen, 353 N.C. 504 (2001); State v. Hurst, 82 N.C. App. 1 (1986) (prosecutor’s implication that jury should convict defendant of armed robbery and larceny to prevent him from committing murder in the future was improper); State v. Miller, 271 N.C. 646 (1967) (prosecutor’s implication that defendants were habitual store-breakers, when there was no evidence to support implication, was improper). As noted in Jones, it is also improper for the prosecutor to make reference to national tragedies outside the record such as mass shootings or the 9/11 terrorist attacks, due to the risk that it will inflame the jurors’ passions and prejudices, and urge them to compare the defendant to other infamous criminals. See State v. Milsaps, 169 N.C. App. 340 (2005) (prosecutor improperly suggested a comparison of the defendant’s acts to the terrorist attacks in New York City and Washington, D.C. on September 11, 2001).

  1. Irrelevant or Incorrect Statements of Law

Counsel may quote from case precedent or statutes, but they are not permitted to argue law that has no bearing on the case at hand, use law that is taken out of context, read from a case with no precedential value, or read from the dissenting opinion. See State v. Anthony, 354 N.C. 372 (2001) (defense counsel was properly prohibited from reading facts from North Carolina Supreme Court case on aggravating circumstance of especially heinous, atrocious, or cruel for purpose of urging jury not to find the aggravating circumstance); State v. Warren, 348 N.C. 80 (1998) (defense counsel properly barred from reading appellate case with definition of reasonable doubt mentioning “moral certainty,” because reference to term was not linked to evidence in case); State v. Gardner, 316 N.C. 605 (1986) (counsel may not read from a dissenting opinion in a case).

Additionally, counsel generally may not present the facts of a prior case, or argue that a particular result is mandated in the present case based on what happened in the prior case. See G.S. 7A-97; 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 jury in the present case should reach the same conclusion); State v. Thomas, 350 N.C. 315 (1999); State v. Gardner, 316 N.C. 605 (1986)State v. Wright, 304 N.C. 349 (1981). However, counsel may be permitted to give a limited recitation of the facts of the case if it makes the rule of law meaningful, but that may not be used as evidence of the existence of those facts in the present case. See Wilcox v. General Motors, 269 N.C. 473 (1967).

  1. Personal Knowledge or Belief

The Rules of Professional Conduct, Rule 3.4(e) provides that a lawyer in a trial shall not “. . . assert personal knowledge of facts in issue except when testifying as 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; State v. Bass, 121 N.C. App. 306 (1996) (prosecutor improperly argued facts that the prosecutor knew were untrue); State v. Wilson, 118 N.C. App. 616 (1995) (prosecutor improperly alluded to evidence state could not introduce under rules of evidence); State v. Miller, 271 N.C. 646 (1967) (statement by lawyer that he “knew” the witness was lying was improper); but see State v. Davis, 291 N.C. 1 (1976) (argument that it was the position of the state that defendant’s testimony was nothing but the testimony of a pathological liar was proper).
For further discussion about calling the defendant a “liar” (or, somewhat less objectionably, arguing that the defendant was “lying” during his testimony) see Section C: Insults, Name Calling, and Personal Attacks, below.

  1. Comment on Defendant’s Failure to Testify or Offer Evidence

The prosecutor generally may not comment on the defendant’s decision to remain silent, or ask the jury to infer guilt from his refusal to speak. See G.S. 8-54; State v. Baymon, 336 N.C. 748 (1994) (prosecutor’s comment that defendant knows how many times he sexually assaulted child but he’s not going to tell you, was improper reference on defendant’s failure to testify; new trial ordered); State v. Durham, 175 N.C. App. 202 (2005) (prosecutor impermissibly commented on defendant’s silence when jury argument implied defendant must have been sane and known right from wrong based on his refusal to talk to law enforcement once he was in custody); State v. Monk, 286 N.C. 509 (1975) (improper to comment in closing that the state did not get an opportunity to cross-examine the defendant about his prior convictions because he did not testify). The prohibition against referring to defendant’s silence also applies to any attempts at making "insulated" comments on defendant’s silence, such as the prosecutor pointing out that "he had not said a word about the defendants not going on the witness stand themselves." State v. Roberts, 243 N.C. 619 (1956); accord State v. Reid, 334 N.C. 551 (1993) (prosecutor’s comments that the defendant did not take the stand, that he has that right, and the jury may not hold that against the defendant, were improper references to defendant’s failure to testify). Defense counsel is likewise prohibited in their closing from explaining why defendant did not testify. See State v. Boone, 307 N.C. 198 (1982).

However, commenting on the defendant’s failure to put on evidence is not the same as commenting on his or her silence. The prosecutor is permitted to point out to the jury that none of the state’s evidence has been “contradicted,” or that the jury has “not heard any evidence” consistent with innocence or the defendant’s proffered version of events. State v. Huffstetler, 312 N.C. 92 (1984) (argument that the jury had heard no evidence in the case that was consistent with innocence was proper); State v. Jordan, 305 N.C. 274 (1982) (argument that defendant had failed to produce any alibi witnesses was proper); State v. Smith, 290 N.C. 148 (1976) (argument that the state’s evidence was uncontradicted was proper). The prosecutor can also comment on the defendant’s behavior and demeanor in the courtroom, as long as he or she does not mention the decision not to testify. See State v. Davis, 353 N.C. 1 (2000) (prosecutor noted that the defendant had bowed his head, cried, rolled his eyes, and muttered during the capital sentencing hearing); State v. Barrett, 343 N.C. 164 (1996) (prosecutor’s comments on defendant’s demeanor during trial and the defendant’s failure to present evidence that refuted state’s theory of case were not improper comments on defendant’s failure to testify).

For further discussion about making references to a defendant’s pre-trial silence in cases where the defendant does testify at trial, see the related entry on this topic in Examining Witnesses: Cross-examination. See also State v. Shores, 155 N.C. App. 342 (2002) (finding error in case where defendant testified in detail on direct examination, and prosecutor repeatedly asked on cross-examination whether defendant had ever informed law enforcement about these details before, and mentioned defendant’s earlier silence during closing argument); State v. Ward, 354 N.C. 231 (2001) (prosecutor’s jury argument in capital sentencing hearing impermissibly commented on defendant’s right not to testify by mentioning in closing that when the defendant was being evaluated at Dorothea Dix Hospital he decided to sit quietly and didn’t want to say anything that would incriminate himself).

  1. Comment on Defendant’s Failure to Call Spouse as a Witness 

The state may not comment on the fact that the defendant did not call his or her spouse to testify, since that would intrude on spousal privilege. See G.S. 8-57; State v. Barden, 356 N.C. 316 (2002) (jury argument was improper when prosecutor commented on defendant’s failure to call his wife to testify); State v. Thompson, 290 N.C. 431 (1976) (argument by prosecutor that defendant’s wife had not testified was improper); State v. McCall, 289 N.C. 570 (1976) (argument that defendant had married witness to silence her as a witness was improper).

  1. Appellate Review and Other Post-Conviction Procedures

It is improper for counsel to speculate on the outcome of possible appeals, paroles, executive commutations, or pardons. State v. Hunt, 323 N.C. 407 (1988) (“A defendant’s eligibility for parole is not a proper matter for the jury’s consideration.”), vacated on other grounds sub nom; 494 U.S. 1022 (1990); State v. McMorris, 290 N.C. 286 (1976)State v. Barber, 93 N.C. App. 42 (1989) (citing McMorris). It has even been held improper to make a mere reference to the existence of appellate review of a conviction. State v. Jones, 296 N.C. 495 (1979) (it was improper for the prosecutor to argue: “Now you know, if you do err in this case he [defendant] has the right of appeal. The State doesn't have that. State has no right of appeal from a case like this” because this argument improperly suggested that the appellate division would review the jury’s verdict, “thereby causing the jury to believe that the Supreme Court would share with them a burden and responsibility which was in fact their sole responsibility”).

  1. Personal Attack on Opposing Counsel 

Rule 12 of the General Rules of Practice provides that: “. . . All personalities between counsel should be avoided. The personal history or peculiarities of counsel on the opposing side should not be alluded to . . . .” See State v. Huey, 370 N.C. 174 (2017) (prosecutor improperly implied that defendant and counsel had conspired to commit perjury – the “prosecutor is not permitted to make ‘uncomplimentary’ statements about defense counsel when there is nothing in the record to justify it”); State v. Covington, 290 N.C. 313 (1976) (argument that defense attorneys must do everything they can to “sway your mind from justice” and “get their clients off” was improper); State v. Miller, 271 N.C. 646 (1967) (argument that defendant’s attorney was a prosecutor until other things tempted him to become defense lawyer was improper); see also G.S. 15A-1230 (counsel may not become abusive or express personal beliefs or opinions). But see State v. McCall, 289 N.C. 512 (1976) (prosecutor’s argument that defense counsel was from another part of the state was proper, based on remarks and argument by defense counsel attacking the honesty of local law enforcement officers and credibility of witnesses).

  1. Personal Attack on Defense Witness 

Defense witnesses may be vigorously cross-examined, and any weaknesses, bias, or inconsistencies in their testimony should be pointed out, but personal, ad hominem attacks are not allowed. See State v. Gell, 351 N.C. 192 (2000) (prosecutor calling witness a liar was improper jury argument); State v. Smith, 352 N.C. 531 (2000) (prosecutor maligning mental health expert’s profession rather than arguing the law, the evidence, and its inferences was improper; also, prosecutor’s scatological references to a witness’s testimony were improper); State v. Rogers, 355 N.C. 420 (2002) (improper and prejudicial argument where prosecutor ascribed the basest of motives to the defendant’s expert, indulged in ad hominem attacks, disparaged the expert’s field of expertise, and distorted his testimony); see also In Re: Caudle, N.C. State Bar Grievance Committee Reprimand, August 6, 2003.

  1. Religious References

Religious references and appeals to spiritual authority are often improper because they cross the line into “linking the law enforcement powers of the State, and specifically the judge, to divine powers of God.” State v. Lloyd, 354 N.C. 76 (2001) (finding it was improper where prosecutor in capital murder case recited the poem “Dance, Death” in his closing, which includes lines such as “the wind and breath of the Lord will call for death,” and then implored the jury to “let the judge set the date”); see also State v. Haselden, 357 N.C. 1 (2003) (prosecutor’s use of biblical references during jury argument in capital sentencing hearing was not so grossly improper that trial judge erred in failing to intervene ex mero motu, but court strongly encouraged counsel to base jury arguments solely on secular law and facts); State v. Williams, 350 N.C. 1 (1999) (court strongly discourages lawyers for state and defendant from making Biblical references during jury argument); State v. Moose, 310 N.C. 482 (1984) (remark that prosecutor was ordained by God as his representative on earth was improper).

  1. Appeal to Sympathy, Prejudice, or Fear

Arguments in closing should be based on the facts and the law, and prosecutors may not ask jurors to decide the case on improper grounds such as anger, fear, sympathy, or prejudice. See State v. Berry, 356 N.C. 490 (2002) (improper to tell jury that an acquittal would put them at risk, and if they were not convinced of defendant’s guilt they should “let him go, but I'll tell you one thing - if you're a woman, if you're alone, if you're defenseless, don't be where he is”); State v. Best, 265 N.C. 477 (1965) (prosecutor’s argument in DUI case “let’s take these drunken drivers off of the streets so we can get home tonight” was improper); State v. Smith, 279 N.C. 163 (1971) (prosecutor’s statements that he did not prosecute innocent men and that he had recently dismissed case of another defendant on similar charges because he was innocent was improper); but see State v. Miller, 315 N.C. 773 (1986) (prosecutor’s argument encouraging the jury to consider thoughtfully their obligation to do something about serious crime was proper); see also State v. Tilley, 292 N.C. 132 (1977) (prosecutor’s statement that if the victim’s rights had been observed “to the extent that we are now undertaking to observe these defendants’ rights, she would be alive” was proper).

  1. Defendant’s Appearance or Race

The prosecutor may comment on the defendant’s behavior or demeanor, but it is improper to argue that defendant should be convicted simply because of his or her appearance. See State v. Augustine, 359 N.C. 709 (2005) (not improper for state to comment on defendant’s courtroom demeanor as showing a lack of remorse); State v. Nicholson, 355 N.C. 1 (2002) (prosecutor allowed to point out that defendant looked “bored” during the trial); but see State v. Murdock, 183 N.C. 779 (1922) (improper to argue that defendant had the “look” and “earmarks” of a bootlegger). The prosecutor should not reference defendant’s race at all, unless it is somehow relevant to the facts of the case. See also State v. Diehl, 353 N.C. 433 (2001) (“Although it is improper gratuitously to interject race into a jury argument where race is otherwise irrelevant to the case being tried, argument acknowledging race as a motive or factor in a crime may be entirely appropriate”); State v. Moose, 310 N.C. 482 (1984) (arguing racial motive for crime was proper).

Insults, Name-calling, and Personal Attacks

Offensive name-calling is strictly prohibited, and the appellate courts have strongly condemned closing arguments that insult or belittle the defendant, particularly where the insult serves no legitimate purpose other than inflaming the passions of the jury. See N.C. Gen. R. Pract., Rule 12 (“offensive personal references are prohibited”). Over the years, a wide variety of insults, slurs, and animal references have all been deemed improper, and the use of such language may result in a reversal on appeal. See, e.g., State v. Matthews, 358 N.C. 102 (2004) (improper for prosecutor to call defendant a “monster,” “demon,” “devil,” and “a man without morals,” and call his defense “bull crap”); accord, State v. Roache, 358 N.C. 243 (2004) (calling defendants “wild dogs” high on the taste of blood and power over their victims); State v. Walters, 357 N.C. 68 (2003) (referred to defendant as “Hitler” and evil); State v. Jones, 355 N.C. 117 (2002) (“lower than the dirt on a snake’s belly”); State v. Williams, 314 N.C. 337 (1985) (“on an imaginary scale of morality and character, defendant wouldn’t even begin to register”); State v. Jerrett, 309 N.C. 239 (1983) (“conman” and a “disciple of Satan”); State v. Davis, 45 N.C. App. 113 (1980) (a “mean S.O.B.”); State v. Smith, 279 N.C. 163 (1971) (“lower than the bone belly of a cur dog” and a “liar”); State v. Ballard, 191 N.C. 122 (1926) (“human hyena”).

On the other hand, the appellate courts have shown prosecutors greater latitude in the use of somewhat disparaging terms to describe the defendant if the prosecutor’s statement was not intended simply as an insult to inflame the passions of the jury, but rather as a legitimate attempt to explain or analogize an issue in the case. See, e.g., State v. Bell, 359 N.C. 1 (2004) (comment that “if you are going to try the devil, you have to go to hell to get your witness” was a permissible response to direct attack by the defendant on the credibility of the state’s main witness); State v. Johnson, 217 N.C. App. 605 (2011) (similar “hell for witnesses” phrase was permissible, used to illustrate the only kinds of witnesses which were available in this type of case); Bell, 359 N.C. at 19-20 (prosecutor’s argument that “he who hunts with the pack is responsible for the kill” properly used as an analogy to explain the theory of acting in concert); State v. Craig, 308 N.C. 446 (1983) (argument that defendants were acting as “wolfpack” was proper when stated in non-inflammatory manner and used to illustrate aggravating circumstance); State v. Twitty, 212 N.C. App. 100 (2011) (trial court allowed prosecutor to refer to the defendant as a con man and a liar, since the offense was in fact committed by lying to a church congregation and deceiving them into giving him money – however, calling defendant a “parasite” was unnecessary and unprofessional); State v. Teague, 216 N.C. App. 100 (2011) (reference to the victims as “sheep” and the defendant as a “predator” was strongly disfavored, but did not require the trial court to intervene ex mero motu); State v. Hamlet, 312 N.C. 162 (1984) (statements that defendant was the “baddest on the block” who killed to regain his reputation as a “bad” man, and that it was “a way of life with defendant” were all permissible -- but statement that he was an “animal” who lived in the jungle was improper).

Predicting whether a given phrase or analogy will be deemed “improper” on appeal can be difficult. Disparaging language has been tolerated in some cases even though quite similar terminology was deemed improper in a previous case. Compare State v. Westbrook, 279 N.C. 18 (1971) (characterization of defendants as two robbers, two thieves, two gunmen, and two killers was proper) with State v. Bowen, 230 N.C. 710 (1949) (characterization of defendants as “these two thieves” was improper); also compare State v. Worthington, 84 N.C. App. 150 (1987) (characterization of codefendant as a “dope king” was proper) with State v. Correll, 229 N.C. 640 (1948) (characterization of defendant as a “small-time racketeering gangster” was improper).

Practice Pointer

Can the state call the defendant a “liar” if he is one?
Even when the evidence clearly shows that the defendant is being untruthful, calling him or her a “liar” is still strongly disfavored and should be avoided. Whether the conviction will be reversed for doing so may depend on: (i) the facts and testimony in the case; (ii) whether there was a legitimate basis for the accusation (such as in a fraud or false pretenses case); (iii) whether the defense objected; (iv) how the trial court responded; and (v) how exactly it was phrased (for example, saying “he’s a liar” vs. “the evidence proves he was lying when he said…”). See, e.g., State v. Huey, 804 S.E.2d 464 (2017) (repeatedly calling defendant a liar and calling his expert witness a “$6000 excuse man” were improper arguments, but not sufficiently prejudicial to trigger reversal); State v. Madonna, 806 S.E.2d 356 (2017) (numerous statements like “every time her lips moved another monstrous lie came out” were improper, but not clearly prejudicial given weight of other evidence); State v. Gillikin, 217 N.C. App. 256 (2011) (if trial judge had not given a curative instruction, appellate court would have reversed conviction due to prosecutor’s “abusive name-calling of defendant and express[ing] his opinion that defendant was a liar and was guilty”). 
Instead of risking reversal on appeal, the better practice is to skip the insult and just explain to the jury why the defendant is a liar: “The defendant testified that he never even met the victim - but you know that’s not true, because you saw a photo of the two of them together one week before. So how can you believe anything else he says about what happened that night?”

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume 2, Chapter 33, and NC Superior Court Judges’ Benchbook, “Jury Argument: Content of Opening and Closing Statements,” Jessica Smith, April 2012.