Trial Objections

Objecting To An Improper Comment During Closing Argument

Trial Objections - Buy Now[Excerpted from Trial Objections, by R. Rogge Dunn]

The trial is winding down. You have called your witnesses; cross-examined your opponent’s witnesses; and presented your experts. Now it is time for closing arguments. While you may be tempted to relax and let down your guard while your opponent sums up his case, you must remain alert for improper statements during closing argument, and be prepared to object.

Ground Rules

The basic rules governing closing arguments are easy to summarize: you are prohibited from appealing to the irrelevant prejudices of the jury; otherwise, you are limited only by the evidence presented during the trial. However, emotions can run high during closing argument, and objections often are called for. An objection is appropriate when, for example, your opponent:

  • Launches a personal attack against you, your client or your witnesses;
  • Refers to collateral source payments;
  • Calls upon the jury to send your client “a message”;
  • Asks the jury to abide by the “Golden Rule”;
  • Makes a per diem argument for damages;
  • Inserts his personal beliefs into his argument;
  • Makes racial or political or religious comments;
  • Appeals to the jurors’ self-interests;
  • Refers to damages awarded in similar cases; or
  • References evidence outside the record.

This post will explain another critical and highly prejudicial ground for objection during closing argument:  an improper comment on the failure of a witness to testify.*

Improper Comment on Failure of a Witness to Testify

“Objection, Your Honor. It is improper for counsel to comment on the failure of a witness to testify.”

Basis for Objection

This well-known prohibition in criminal cases stems from the Fifth Amendment right of the accused to remain silent. In a civil case, however, you may comment upon an opponent’s failure to call a witness. You can go so far as to suggest that your opponent did not call the witness because that witness would have testified unfavorably, but you will first have to demonstrate that (1) the witness was within your opponent’s control, and (2) under ordinary circumstances one would expect the witness to be called.


Watch for indirect references to a silent defendant or, absent proper foundation, a missing witness, like those made in the cases below (e.g., evidence “not being contested”). Whether or not you have obtained an in limine order prohibiting such a comment, ask the court to admonish opposing counsel in the presence of the jury if he or she violates this rule. The court frequently will oblige you, for this is highly prejudicial conduct.

The timeliness of objections during closing argument is critical. Waiting until the judge has charged the jury, for example, generally is too late. Moreover, most courts have held that objections not timely made are waived. In rare instances – such as when counsel brings damaging facts to the jury’s attention during closing argument when such facts were not in evidence – appellate courts may reverse without an objection on the record. This is appropriate only when the improper argument so far exceeds proper bounds and is so prejudicial that it substantially affects the total fairness of the trial.

Response to Objection

If you feel you have to comment on a failure to testify, ask rhetorically why no evidence was presented to contradict a certain position. If your opponent objects, argue that you are commenting upon the merits of opposing counsel’s case, not upon the absence of a witness or the silence of the defendant. You may wish to clear this approach with the judge first, depending on how much you want to gamble and how receptive you believe your judge will be to such a comment.


Griffin v. California, 380 U.S. 609 (1965). In a seminal case on this issue, the Supreme Court held that commenting on the refusal to testify “is a remnant of the inquisitorial system of criminal justice.” Characterizing it as a penalty imposed by courts for exercising a constitutional privilege, the Court held that the Fifth Amendment forbids comment by the prosecution on the accused’s silence and instructions by the court that such silence is evidence of guilt.

United States v. Lyons, 740 F.3d 702 (1st Cir. 2014). The court found that the government’s closing argument, which noted the absence of any evidence of defendant’s thoughts, did not amount to a comment on the defendant’s failure to testify, but rather on the lack of any evidence in the record to support the defense’s theory of the case.

United States v. Jackson, 736 F.3d 953, 957 (10th Cir. 2013). Where prosecutor suggested that defendant should “man up” and “accept responsibility” for his actions, the court held that there was no comment on defendant’s right not to testify. The prosecutor’s comments were a response to the defendant’s attempt to suggest that others were responsible for the criminal episode, rather than a statement that might be of a type that might influence a jury to decide a case based upon the failure of a defendant to testify.

United States v. House, 684 F.3d 1173 (11th Cir. 2012). The defendant was convicted of, inter alia, eight counts of willfully depriving a person of the right to be free from unreasonable seizure by a law enforcement officer. In his closing argument, the prosecutor said, “[W]e don’t have the defendant’s version of that stop [referring to one of the instances of alleged unreasonable seizure] because there is no report about that one. The only evidence you have therefore” came from a prosecution witness. The court held that the prosecutor was not commenting on the defendant’s failure to testify, but encouraging the jury to convict the defendant based on the witness’s testimony.

People v. Tully, 282 P.3d 173, 238-39 (Cal. 2012). The court rejected defendant’s Griffin argument with respect to the prosecutor’s comment that the jury should assess the defendant’s statement to police using the same standards as applied to trial testimony. The court held this was not a comment on the defendant’s failure to testify, but was limited to the defendant’s statement to the police as covered by a hearsay exception.

Bell v. State, 108 So. 3d 639 (Fla. 2013). The court reviewed a number of comments made by the prosecution as potentially interpretable as a comment on the defendant’s failure to testify. One of these comments was the assertion that the defendant’s not guilty plea was the “sum of the evidence in support of his innocence.” The court held this to be an improper comment on the defendant’s failure to testify and, therefore, error. The prosecutor’s claim that, in cases like this, it’s “always one-person’s word against another,” also impermissibly commented on the defendant’s right to remain silent. However, because the defendant failed to preserve an objection to any of those comments, and they cumulatively did not amount to a fundamental error, no relief was granted.

Archie v. State, 340 S.W.3d 734 (Tex. Crim. App. 2011). In closing arguments, the prosecutor turned to the defendant and said, “[B]ut the only person who heard her scream, the only person who said she screamed was Trent Archie [the defendant]. Do you still hear it, Trent? Do you still hear her screaming? How do you know she screamed?” The court held that the last question was a permissible reference to an admitted piece of evidence, but that the questions immediately preceding it were improper as an invitation to the jury to go beyond the inference deriving from the evidence and to consider the defendant’s failure to testify. However, the court concluded that it was unlikely that the jury would have ignored the court’s explicit instructions to disregard those statements, and, thus, their prejudicial magnitude was insufficient to demand a mistrial.

*This post is an abbreviated excerpted from Trial Objections, by Rogge Dunn.

R. Rogge Dunn is a trial lawyer who loves trying cases. He has litigated complex business, employment, partnership and insurance disputes throughout the country and tried cases to a jury verdict in four states. Two of his closing arguments were recorded for the Million Dollar Arguments audiotape series. Mr. Dunn has been recognized as a Texas “Super Lawyer,” as one of the “Best Lawyers in Dallas,” and as one of the top 100 attorneys in Texas. He is a prolific author and speaker who enjoys exchanging ideas and discussing trial strategies and evidentiary issues; he taught at Southern Methodist University as an Adjunct Professor for 16 years. Mr. Dunn is Board Certified in both Civil Trial Law and Labor and Employment Law.

Trial Objections succinctly explains how to make and meet more than 100 objections. With pattern language, proven tactics, and hundreds of citations to federal and state authority, Trial Objections is a complete, one-stop resource for answers to your evidentiary and trial-related questions.

Trial Objections - Buy Now