Closing arguments afford an attorney an opportunity for the attorney to use skills and imagination in attempting to convince the jury to rule for their side. Closing arguments do not need to be taken down by the court reporter. O.C.G.A. § 17-8-5; Dunlap v. State, 291 Ga. 51 (2012).
The time allowed for closing argument is as follows: (A) Felony cases punishable by the death penalty or life in prison 2 hours each side; (B) Any other felony case 1 hour each side; (C) Misdemeanor cases 30 minutes each side. O.C.G.A. § 17-8-72; O.C.G.A. § 17-8-73; Uniform Superior Court Rule
13.1. Before arguments begin, counsel may apply for more time for argument. The attorney must state the reason that additional time is needed. The judge in its discretion may grant extensions. O.C.G.A. § 17-8- 74.
The prosecutor is allowed to argue twice. The prosecutor may make an opening closing argument then a second concluding closing argument after the defense closing argument. O.C.G.A. § 17-8-71. The prosecutor can waive the opening closing argument and present one closing argument after the defense closing. Not more than two attorneys shall be permitted to argue any case for any party except by permission of the judge. In no event shall more than one attorney for each side be heard in concluding argument. O.C.G.A. § 17-8-70; Uniform Superior Court Rule 13.3.
Attorneys are granted wide latitude in conducting closing argument. A closing argument is appropriate as long as it is based on the evidence that is properly before the jury or reasonable inferences raised by the evidence, including any that address the credibility of witnesses.” Jackson v. State, 301 Ga. 774 (2017); . Smith v. State, 290 Ga. 428 (2012).
Lawyers may make use of well-known historical facts and illustrations so long as the lawyer does not make extrinsic or prejudicial statements that have no basis in the evidence. “Counsel's illustrations during closing argument may be as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.” Duffy v. State, 271 Ga. App. 668 (2005); Rainly v. State, 307 Ga. App. 467 (2010). Attorneys are permitted to draw deductions from the evidence and the fact that the deduction may be illogical, unreasonable, or even absurd, is a matter for reply by the adverse counsel, and not for rebuke by the judge. Tolbert v. State, 313 Ga. App. 46 (2011).
While the range of discussion during closing argument is wide, counsel should not go outside the facts appearing in the case and bring in extraneous matters that are not a part of the case. Lewis v. State, 317 Ga. App. 218 (2012).
Lawyers must argue what the evidence has shown or inferences from the evidence. Christopher v. State, 314 Ga. App. 809 (2012). Lawyers are not allowed to argue their personal opinion or beliefs about the evidence. Humphrey v. Lewis, 291 Ga. 202 (2012). It is proper for an attorney to urge the jury to draw inferences from the evidence regarding the credibility of witnesses. Scott v. State, 290 Ga. App. 883 (2012). While it is improper for counsel to state to the jury counsel's personal belief as to the veracity of a witness, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence. Lee v. State, S23A1097 (December 19, 2023). Therefore, a prosecutor can argue that the witnesses were telling the truth, so long as the prosecutor does not state to the jury his personal belief about the truthfulness of a witness. Wilson v. State, 306 Ga. App. 827 (2010).
Lawyers should not make negative comments about the opposing lawyer designed to impugn the integrity of the opposing counsel. Warren v. State, 314 Ga. App. 477 (2012); Gissendaner v. State, 272 Ga. 704 (2000).
Lawyers are not allowed to ask a juror to place themselves in the position of the defendant or alleged victim. Humphrey v. Lewis, 291 Ga. 202 (2012);
Christopher v. State, 314 Ga. App. 809 (2012). This is called a “golden rule” argument and is improper. Gomez v. State, 315 Ga. App. 898 (2012); Tucker v. State, 313 Ga. App. 537 (2012); Futch v. State, 286 Ga. 378 (2010). However, a prosecutor's appeal to the jurors to convict the defendant for the safety of the community is not improper. Sanders v. State, 290 Ga. 637 (2012); Byers v. State, 276 Ga. App. 295 (2005).
Analogizing a defendant or a defendant's case to another well known defendant or case is permissible during closing argument if the analogy is supported by the facts in evidence. Humphrey v. Lewis, 291 Ga. 202 (2012); Carr v. State, 267 Ga. 547 (1997).
While a prosecutor may analogize a defendant to historical criminals such as Jessie James, it is improper for the prosecutor to refer to other cases the prosecutor has tried. Lewis v. State, 317 Ga. App. 218 (2012). Although lawyers may not read cases to the jury Conklin v. State, 254 Ga. 558 (1985), they may refer to the law that the judge is going to read to the jury during his jury instructions. However, attorneys may not misstate the law in a way that will mislead the jury. Freels v. State, 195 Ga. App. 609 (1990); Long
v. State, 307 Ga. App. 669 (2011).
It is improper for a prosecutor to argue to the jury during the guilt-innocence phase of a trial that if the defendant is found not guilty, the defendant will pose a threat of future dangerousness. Davenport v. State, 316 Ga. App. 234 (2012). The failure of defense counsel to object may be found to constitute deficient performance. Kemp v. State, 314 Ga. App. 730 (2012); Fulton v. State, 278 Ga. 58 (2004); Jones v. State, 288 Ga. 431 (2011).
It is improper for either side to argue about punishment. Dix v. State, 307 Ga. App. 684 (2011). Further, no attorney shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the judge or jury because of parole. If counsel for either side in a criminal case makes the argument to or in the presence of the jury, opposing counsel shall have the right immediately to request the judge to declare a mistrial, in which case it shall be mandatory upon the judge to declare a mistrial. Failure to declare a mistrial shall constitute reversible error. O.C.G.A. § 17-8-76.
A prosecutor may not comment upon a defendant exercising his right to remain silent. A prosecutor also cannot attempt to shift the burden of proof to the defendant. However, when the prosecutor argues that the defense should explain certain evidence, that does not necessarily shift the burden of proof or constitute an improper comment on the defendant's failure to testify. Ward v. State, 262 Ga. 293 (1992) ("make them explain" argument not improper); Ingram v. State, 253 Ga. 622 (1984) (while a prosecutor may not comment on a defendant's failure to testify, he may argue that evidence of guilt has not been contradicted or rebutted). Lipscomb v. State, 315 Ga. App. 437 (2012); Duffy v. State, 271 Ga. App. 668 (2005). The prosecutor can argue inferences to be drawn by the defendant's failure to produce witnesses who could have given evidence favorable to the defendant. Angulo v. State, 314 Ga. App. 669 (2012); Tucker v. State, 313 Ga. App. 537 (2012). A prosecutor is permitted to comment on a defendant's courtroom demeanor in closing argument. Jeffers v. State, 290 Ga. 311 (2012); Hardnett v. State, 285 Ga. 470 (2009).
Closing arguments are judged in the context in which they are made. Adams v.State, 283 Ga. 298 (2008); Styles v. State, 308 Ga. 624 (2020); Lee v. State, S23A1097 (December 19, 2023). Therefore, a prosecutor is permitted to state that it is not unusual for the prosecutor's office to dismiss cases or that the investigators and prosecutors would not jeopardize their careers to frame the defendant if those arguments are made in response to a defense closing argument. Tucker v. State, 313 Ga. App. 537 (2012); Manley v. State, 284 Ga. 840 (2009).
Whether to object to a particular part of a prosecutor's closing argument is a tactical decision, and counsel's decision not to make an objection must be patently unreasonable to rise to the level of ineffective assistance of counsel. Cochran v. State, 305 Ga. (2019).
It is up to the judge to determine if an attorney has made an improper comment during closing argument. Objections to a closing argument must be made during the closing argument not at the conclusion of the argument. Lakes v. State, 314 Ga. App. 10 (2012). If an attorney during closing argument makes statements of prejudicial matters which are not in evidence, it is the duty of the judge to intervene and prevent the improper argument. A sustained objection to improper argument of counsel cannot serve as the basis for reversal of a conviction unless there is also a motion for mistrial, denied request to strike the argument, or denied request for curative instructions. Kyler v. State, 270 Ga. 81 (1998). If the defense attorney does object to the prosecutor's improper closing argument and the judge sustains the objection, the judge is required by
O.C.G.A. § 17-8-75 to give an appropriate instruction to the jury to try to remove the improper impression from their minds, even absent a request from the defense attorney. O'Neal v. State, 288 Ga. 219 (2010). The judge may also order a mistrial.
O.C.G.A. § 17-8-75. A mistrial is appropriate if it is essential to preserve the defendant's right to a fair trial. It is for the judge to determine whether the granting of a mistrial is the only corrective measure or whether any prejudice can be corrected by withdrawing the matter from the jury's consideration with proper instruction. Johns v. State, 274 Ga. 23 (2001); Dix v. State, 307 Ga. App. 684 (2011).
In a non-capital case, the failure to object to the State's closing argument waives the right to rely on the alleged impropriety as a basis of reversal. Scott v. State, 290 Ga. 883 (2012). When no objection is raised, the test of reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict, the test is whether the improper argument in reasonable probability changed the result of the trial. Stubbs v. State, 315 Ga. App. 482 (2012); Todd v. State, 261
Ga. 766 (1991).