Prosecutors’ Closing Arguments at the Penalty Trial


In death penalty cases, a defendant who has been convicted of a capital offense must also face a penalty trial where the court considers evidence both for and against imposition of the death penalty. During the penalty trial, both prosecution and defense introduce evidence of the aggravating or mitigating circumstances’ surrounding the conduct of the defendant which led to his conviction. After the evidence has been presented, both prosecution and defense counsel are permitted to present argument to the jury. Despite the interests at stake, only recently have the courts begun to closely scrutinize the closing arguments of prosecutors in penalty trials for their prejudicial effect upon the jury.

Sadly, this state of affairs reflects the lack of judicial supervision of closing arguments which has generally been the rule in criminal trials. In fact, according to Professor Francis Allen, “minimizing prosecutorial excesses is one of… [the] great unsolved problems in criminal law administration.” Typically, courts have allowed and do allow prosecutors to engage in considerable rhetorical excess in their closing arguments. Moreover, even if a particular closing argument was deemed improper, appellate courts tended to resort to a variety of doctrines to avoid reversal of the defendant’s conviction. As a result, defense counsel’s job of protecting her client from prejudicial statements of the prosecutor was difficult not only at the trial level, where the prosecutor was able to directly address the jury, but also at the appellate level, where a judge’s sense of what actually occurred at trial is considerably diminished.

However, two decisions of the United States Supreme Court have marked a move towards closer scrutiny of the prosecutor’s closing argument at the penalty trial. Taken together, Caldwell v. Mississippi and Darden v. Wainwright create the parameters within which defense counsel can argue that a prosecutor’s closing statement establishes grounds for reversing a death sentence. This Article will first examine the holdings in Caldwell and Darden. It will then identify those prosecution arguments which, when objected to by the defense, are likely to constitute reversible error.

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