Improper Closing Arguments- Failure to Testify and Plea Bargain Negotiations

After the evidence is presented at a criminal trial, both sides have the opportunity to make closing arguments. There are limits to what the State can say to a jury, and in theory it is erroneous when the State cheats and makes improper closing arguments. However, in Texas our historically ultra-authoritarian appellate courts are largely unwilling to hold prosecutors accountable for trial conduct, so don’t count on your conviction being overturned for improper closing arguments.

Defendant’s Failure To Testify At Trial

A prosecutor’s comment on a defendant’s failure to testify violates both the federal and state constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see also U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08; Griffin v. California, 380 U.S. 609, 615 (1965). The implication that the State’s comment referred to a defendant’s failure to testify, however, must be “a clear and necessary one.” Randolph, 353 S.W.3d at 891. Indirect or implied allusions, or language that might be construed as such, do not constitute a violation. Id. A prosecutor’s argument amounts to a comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). A defendant has a separate privilege not to testify at either the guilt or punishment phases of a trial. Randolph, 353 S.W.3d at 891.

Plea Bargain Negotiations

Attempts at plea bargaining made prior to or during a trial, which in no way became a part of the evidence in the case, should not be alluded to in argument by the State. Clayton v. State, 502 S.W.2d 755, 757 (Tex. Crim. App. 1973); see also Ruiz v. State, 06-08-00136-CR, 2009 WL
36670, at *4.


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