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What Can You Argue to a Jury About a Witness’ Credibility? North Carolina Supreme Court Provides Some Guidance

Court Witness

Memo to trial lawyers in North Carolina: Do not tell the jury that a witness is a liar.  And you also shouldn’t imply that opposing counsel and an opposing expert witness assisted that witness in committing perjury.

Such was the approach taken by the prosecution in a first-degree murder trial in Mecklenburg County. After the jury returned a guilty verdict on voluntary manslaughter, the Court of Appeals vacated the conviction and remanded for a new trial, holding that the State’s characterization in closing arguments of the Defendant as a liar, and his counsel and expert witness as supporting his dishonesty, was “grossly improper,” and that the trial court should have intervened ex mero motu.  (See the Court of Appeals opinion in State v. Huey here). The Supreme Court of North Carolina then granted discretionary review, and today issued an opinion holding that while the State’s arguments at trial were improper, they did not rise to the level of prejudicial error in light of the other evidence against the Defendant.   (See the Supreme Court of North Carolina’s opinion in State v. Huey here).

In Huey, the credibility of the Defendant was a main issue, as the evidence showed that he had given multiple differing accounts of what transpired on the night of the killing in question.  In closing argument, the State implied that the defendant was a liar, saying to the jury among other things that “[i]nnocent men don’t lie, they simply don’t have to.  The truth shall set you free unless, of course, you’re on trial for a murder that you committed.”   The State went on to imply that the defendant had lied on the stand in cooperation with the defense attorney and his primary expert witness.  The Court of Appeals held that when taken in context, the State was arguing that the jury should not trust the defendant’s lawyer because he was “paid to defend the Defendant” and that the defense expert “would say whatever the defense wanted him to say, because he was being paid to do so.”

Defendant’s counsel did not object to these statements and implications during the State’s closing, but Defendant subsequently appealed his conviction on the basis that the trial court should have intervened ex mero motu.  The Court of Appeals agreed, holding that the prosecutor’s statements were “grossly improper” and the trial court should have addressed the issue in some manner of its own accord.  The Court of Appeals then held that because the Defendant’s entire defense was predicated on his credibility, this error was not harmless and the case therefore was remanded for a new trial.

On discretionary review, the Supreme Court held that that the prosecutor’s statements about the Defendant, his counsel, and his expert witness in his closing argument were, indeed, improper.  However, the Court did not find them “to be so grossly improper that they amount to prejudice” and reversed the Court of Appeals.  The Court held that the Court of Appeals erred when it “summarily determined” that the Defendant had been prejudiced, instead of conducting the appropriate prejudice analysis.

The applicable standard of review for an appellate court confronted with such improper statements is “whether these improper arguments deprived defendant of a fair trial.”  It is the defendant’s burden to show “a reasonable possibility that, had the errors in question not been committed, a different result would have been reached at the trial.”  Based on the evidence that was before the jury, the Supreme Court held that the Defendant in Huey could not show prejudice arising rom the State’s improper arguments.  Of particular note was the fact that the jury convicted the Defendant of voluntary manslaughter, which was in line with Defendant’s argument that he acted in “imperfect self-defense.”  As this defense was supported by the testimony of the Defendant and his expert,  and because the jury appeared to have been persuaded by this testimony, the Court reasoned that it could not be the case that the prosecutor’s improper statements destroyed all the credibility of the defense team.

Although the Supreme Court allowed the conviction to stand, it concluded its opinion by voicing concerns that “the same closing argument language continues to reappear” and issuing an instruction to trial judges to be prepared to intervene ex mero motu when improper arguments are made.   The Court advised that arguments must avoid

(1) comments dominated by counsel’s personal opinions; (2) insinuations of conspiracy to suborn perjury when there has been no evidence of such action; (3) name-calling; and (4) arguing that a witness is lying solely on the basis that he will be compensated.

So where is the line when it comes to arguing the issue of witness credibility to the jury?  The Court of Appeals’ opinion in State v. Huey provides this as guidance, quoting State v. Locklear, 294 N.C. 210, 217, 241 S.E. 2d 65, 70 (1978): “It is improper for a lawyer to assert his opinion that a witness is lying.  He can argue to the jury that they should not believe a witness, but he should not call him a liar.”

–Patrick Kane

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