In a criminal case, neither the prosecution or the defendant is not allowed to talk about the penalties, whether it is to say the defendant would lie to save his own neck, or to invoke sympathy for the defendant. That is dealt with pretrial by a Motion in Limine. That's NOT the argument that would be made in any criminal closing.
Sorry Chris you are dead wrong. I have tried 150 criminal cases to verdict in State and Federal Courts around the US. And yes I can cross examine and close as to that and more, whether acting here as a prosecutor or in my real world role as a defense lawyer. Its called motive to lie. What I cannot do as a defense attorney is let the jury know what my client, the defendant, is facing. Of course any lawyer worth his salt can do that through cross of other witnesses.Check out my cross video on you tube. www.stewartorden.com
Right. Motive to fabricate is permissible. The jury instructions tell jurors they can credit or discredit testimony on whether the witness has an interest, or lack thereof, in the outcome. However, that does not permit discussion of the potential penalties or class of charge a defendant faces. It's the prosecutors bring the MILs, and for good reason. Our judges routinely grant it, despite my protests. If it's a serious enough charge, it's probably a no-brainer anyhow. At any rate, it is a serious mistake for prosecutor's to rely so heavily on the "defendants lie" tactic. It opens the door wide open. I'm sure you have done this: "Mr. Orden says [defendant ] is a liar. Why? Not Because of evidence, but because he is the defendant. That is what we in the business call a 'circular argument'. The judge has cautioned you several times not to consider [defendant] guilty just because Mr. Orden charged him. But Mr. Orden says, over and over, 'He's a liar because he faces these very, very serious charges I have charged.' Keep this in mind: For every person who has been falsely convicted in this Country--and we all know that DNA evidence has PROVEN that has happened far too many times--there was a prosecutor, a lot like Mr. Orden, who stood in a courtroom, a lot like this one, and asked a jury,a lot like you people, to rely upon the same kind of empty jargon. But that's what you do when you don't have enough evidence: However, the instructions you have been ordered to follow demand actual evidence, not fear, not jargon. Mr. Orden's comments are proof of only one thing: He KNOWS he does not have actual evidence to convict. What he relies upon several times in his remarks is "liar, liar pants on fire". However, that is a playground tactic. It does NOT deserve the serious consideration that adults, demanding real evidence, require, especially when the stakes are so high, as Mr. Orden has pointed out to you time an time again."
Know your judges...he knows exactly how they think. He's been before them for 15years. Practice is not a straight jacket art. You got to use anything else you have; knowing your judges could just be the little urge you get ahead of the defendant. So I know
Completely wrong. IF a motion in limine is filed- this is a REQUEST that certain evidence or testimony one included/excluded. Also you haven’t mentioned what jurisdiction you are referring to.
Of course the underlying case is most important, but what I don't understand is: why did the defendant join the ovation at the end? did he not know the prosecutor was talking about him? Also, why did the prosecutor himself clap? I figure that if I give a speech, I don't clap to myself.
