Beware the danger zones when addressing a jury. Why should counsel avoid violating the Rules of Professional Conduct when addressing the jury? The consequences of a violation include: a mistrial; reversal of a favorable verdict; loss of your license to practice law; a judge’s reprimand; and damage to your reputation.
This post identifies common danger zones for trial lawyers when addressing a jury. Here is a prosecutor delivering an opening statement:
“The State will call Mr. Ethridge, who has tendered a plea of guilty to attempted strong-arm robbery. And I’ll say this from the bottom of my heart, that there is one soul, who was at one time unclean and is now clean. . . That’s good for the soul, and he is looking forward to this. As much as someone tragically is, he’s at a point where he wants to be clean. That’s really what it’s all about. And there will be evidence in this case that Mr. Ethridge is wanting to let it all out. This is his day to let all these things fly. He’s beyond that now. Hallelujah.”
The South Carolina Appellate Court in Gilchrist v. State, 565 S.E.2d 281, 285 (S.C. 2002) explained that the solicitor (prosecutor): “Cannot vouch for the credibility of a witness by expressing or implying his personal opinion concerning a witness’ truthfulness. . .” Rule of Professional Conduct 3.4 states that counsel shall not state a personal opinion as to . . .the credibility of a witness.”
Here is another prosecutor in closing argument: “Whenever a jury acquits a person who has been proven guilty they don’t follow their oaths. And if you let the defendant, Tracy Nelson, walk out of this courtroom on this evidence I would suggest you have not lived up to your oaths.” The Florida Court of Appeals held: “. . .ultimate deductions from the evidence are for the jury to draw. Counsel may argue what deductions in his judgment the evidence would reasonably support, but under no circumstances is he warranted in offering dogmatic statements as to what the evidence proves.” People v. Nelson, 737 N.E.2d 632, 639, 193 Ill. 2d 216 (2000).
Regarding dogmatic statements to the jury, watch this scene from My Cousin Vinny:
Another danger zone is never say “I”. RPC 3.4 (d)(3) states: “A lawyer shall not in appearing as a lawyer before a tribunal on behalf of a client shall not: assert a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
A mother cat decided to take her kittens out for a walk. The kittens had never been outside the house. They encountered a Rottweiler that was growling and drooling at them. The mother cat went up face to face with the dog—and barked. The Rottweiler turned and ran away in fear. The mother cat took her kittens back under the porch, gathered them around her and said, “Now I need to talk to you about the importance of a second language.
The point is that you need not state a personal opinion; use a second language. Never say, “I”; say, “The evidence shows.”