Mass. R. Evid. 1113
Mass. Guid. Evid. 1113
Subsection (a). An opening statement is generally limited to fifteen minutes. See Mass. R. Crim. P. 24(a)(2); Rule 7 of the Rules of the Superior Court. In a criminal case, the defendant may present an opening statement immediately after the plaintiff's opening or may choose to defer opening until after the close of the plaintiff's case. See Commonwealth v. Dupree, 16 Mass. App. Ct. 600, 603(1983) (tactical considerations may affect decision whether to defer opening until after conclusion of Commonwealth's case).
Subsection (a)(1). This subsection is derived from Commonwealth v. Croken, 432 Mass. 266, 268 (2000); Commonwealth v. Fazio, 375 Mass. 451, 454 (1978); and Posell v. Herscovitz, 237 Mass. 513, 514 (1921). There is no place for inflammatory rhetoric or appeals to juror sympathy in an opening statement. Commonwealth v. Sun , 490 Mass. 196, 209-212 (2022); Commonwealth v. Siny Van Tran, 460 Mass. 535, 554 (2011). See Commonwealth v. Silva, 455 Mass. 503, 514 (2009) ("The prosecutor's opening remark, describing the killing as cold blooded, was improper argument for an opening."). But see Commonwealth v. Johnson, 429 Mass. 745, 748 (1999) (prosecutor's remarks about presence of victim's child and viciousness of crime not improper because relevant to whether defendant acted with extreme atrocity or cruelty). Simply because a statement made in a reasonable, good-faith belief that the evidence would materialize at trial turns out not to be true does not mean the statement constitutes error. See Fazio, 375 Mass. at 457. See Commonwealth v. Qualls, 440 Mass. 576, 586 (2003) (absent showing of bad faith or prejudice, that certain evidence cited in opening statement fails to materialize is not ground for reversal). But see Commonwealth v. Davis, 487 Mass. 448, 469 (2021) (unreasonable for Commonwealth to suggest that jury could identify defendant based on low-resolution video depicting individual's skin color and common hairstyle but not facial features). Neither unreasonableness nor bad faith is to be presumed in an opening statement. Commonwealth v. Errington, 390 Mass. 875, 883 (1984). See Commonwealth v. Morgan, 449 Mass. 343, 361 (2007) (ruling that statements of coconspirator were inadmissible did not establish that prosecutor, who believed statements to be admissible and referred to them in opening, acted in bad faith).
"[A] judge, acting within his discretion, may limit the scope of the prosecutor's and defense counsel's opening statements to evidence counsel expects to introduce." Commonwealth v. Truong , 34 Mass. App. Ct. 668, 671(1993). Compare Commonwealth v. Medeiros, 15 Mass. App. Ct. 913, 913-914(1983) (no abuse of discretion in refusing to permit opening statement when defense counsel "announced no more than a hope to puncture the Commonwealth's case somehow through cross-examination"), with Commonwealth v. Dupree, 16 Mass. App. Ct. 600, 602-603(1983) ("To deny the defendant the right to open at the commencement of the trial without inquiry into the [content] of the proposed statement was error. To attempt to evaluate the extent of the prejudice which ensued would be an exercise in speculation, and, therefore, we reverse."). There may be special circumstances where a statement may be so "irretrievably and fatally prejudicial to the defendant" that a prosecutor should have "no doubt" as to its admissibility before including it in the opening. Fazio, 375 Mass. at 455, quoting Commonwealth v. Bearse, 358 Mass. 481, 487 (1987). If there is a question as to the existence or admissibility of evidence, the matter may be brought to the judge by way of a motion in limine. See Commonwealth v. Spencer, 465 Mass. 32, 42 (2013). Cross-Reference: Section 103(f), Rulings on Evidence, Objections, and Offers of Proof: Motions in Limine.
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e), 8.4(d) (2015); Admonition No. 00-51, 16 Mass. Att'y Discipline Rep. 528 (2000), at http://perma.cc/NB7Y-7BES (in opening statement, prosecutor described evidence that he was not in a position to produce).
Subsection (a)(2). This subsection is derived from Douglas v. Whittaker, 324 Mass. 398, 399 (1949), and Commonwealth v. Lowder, 432 Mass. 92, 102 (2000). The power to direct a verdict should be exercised with "great caution" because the outline of the evidence in the opening may not always fully describe the evidence at trial. Hubert v. Melrose-Wakefield Hosp. Ass'n, 40 Mass. App. Ct. 172, 176(1996), quoting Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 351 n.2 (1980). Thus, in close cases, the judge should decline to direct a verdict. Douglas, 324 Mass. at 400. See also Island Transp. Co. v. Cavanaugh, 54 Mass. App. Ct. 650, 654(2002) (preference for civil cases to be decided on "sworn evidence rather than an anticipatory statement of counsel" unless opening statement fails to describe elements of a cause of action). However, where the facts stated do not constitute a cause of action, a verdict is properly directed because "the court and jury's time, the public purse, and the defendant's time and purse ought not to be wasted." Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 431(1987). In a criminal case, the judge should not allow a motion for a required finding of not guilty after the opening unless the prosecutor is made aware of the problem and given an opportunity to correct it, and unless it is clear that the defendant cannot be lawfully convicted. Lowder, 432 Mass. at 100-101.
Subsection (b). A party is generally allowed thirty minutes for closing argument in a civil case. Mass. R. Civ. P. 51(a). In a criminal case, "[t]he defendant shall present his closing argument first." Mass. R. Crim. P. 24(a)(1). "A trial judge has broad discretion in limiting the time for closing argument." Commonwealth v. Mahar, 6 Mass. App. Ct. 875, 875-876(1978). See also Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 22(2009). "[J]udges who intend to enforce a time limit [on closing argument should] make clear to counsel before closing argument the limit to be imposed and the possibility that the judge will warn them of the time remaining." Commonwealth v. Brown, 462 Mass. 620, 633 n.11 (2012).
The defendant in a criminal case has a right under the Sixth Amendment to the United States Constitution to make a closing argument at trial. Commonwealth v. Marvin, 417 Mass. 291, 292 (1994). This right also applies in cases in which the defendant is self-represented. Herring v. New York, 422 U.S. 853, 864 n.18 (1975). See also Commonwealth v. Martelli, 38 Mass. App. Ct. 669, 669-672(1995) (judge's refusal to allow defense to present closing argument created substantial risk of miscarriage of justice and required reversal even absent objection).
Subsection (b)(1). This subsection is derived from Herring v. New York, 422 U.S. 853, 862 (1975), and Commonwealth v. Farley, 432 Mass. 153, 157 (2000).
Subsection (b)(2). The first sentence of this subsection is taken nearly verbatim from Commonwealth v. Pettie, 363 Mass. 836, 840 (1973), and Mason v. General Motors Corp., 397 Mass. 183, 192 (1986). The second sentence is derived from Commonwealth v. Costa, 414 Mass. 618, 629 (1993). The third sentence is derived from Commonwealth v. Kee, 449 Mass. 550, 560 (2007). See also Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980) ("Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusion the jury should draw from the evidence."); Commonwealth v. Haas, 373 Mass. 545, 557 n.11 (1977) ("Counsel may 'fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.'"). The fourth sentence is derived from Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000). The last sentence of this subsection is derived from G. L. c. 231, § 13B, and Mass. R. Civ. P. 51(a)(2), as appearing in 488 Mass. 1405 (2021).
Common Sense; Common Experience. Counsel may ask the jury to use their common sense and to apply their common experience to the evidence. See Commonwealth v. Jefferson, 461 Mass. 821, 836 (2012); Commonwealth v. Santiago, 425 Mass. 491, 498 (1997), cert. denied, 525 U.S. 1003 (1998). Cf. Commonwealth v. Salazar, 481 Mass. 105, 116-117 (2018) (prosecutor's suggestion that jurors should consult "moral compass" was troublesome and approached improper appeal to emotions); Commonwealth v. Hrabak, 57 Mass. App. Ct. 648, 654(2003) (improper for prosecutor to urge jurors to infer from their own knowledge and experience that six-year-old child's rectum could accommodate a penis without showing any injury, as this was beyond knowledge of ordinary layperson).
Credibility of Witnesses. Counsel may argue that a witness is mistaken or lying when the argument is expressed as a conclusion to be drawn from the evidence and not as a personal opinion. See Commonwealth v. Obershaw, 435 Mass. 794, 807 (2002) (permissible to argue that defendant was lying and that his account at trial strained credulity where there "was substantial evidence that the defendant had changed his story between his statements to the police and his testimony at trial"); Commonwealth v. Murchison, 418 Mass. 58, 60 (1994) (defense counsel entitled to argue from evidence that police officers had lied). "Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Thomas, 401 Mass. 109, 116 (1987). A prosecutor may also make a fair response to an attack on the credibility of a witness. Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). See also Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) (prosecutor's statement that jury had "no reason to doubt" witness was proper response to defense's assertion that witness was not credible).
References to the View. Counsel may ask the jury in a closing to consider things they saw on a view. Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978). But see Commonwealth v. Brea, 488 Mass. 150, 167-168 (2021) (error for prosecutor to ask jurors to compare their recollections of event that occurred during the view but unrelated to case as illustration of vagaries of human memory). Cross-Reference: Section 1109, View.
Stipulation or Transcript. Counsel may read from or quote any transcript or stipulation that has been admitted in evidence but must provide a copy to opposing counsel in advance of the argument. Commonwealth v. Delacruz, 443 Mass. 692, 694-696 (2005).
Special Role of the Prosecutor. The prosecutor performs a special function in representing the Commonwealth. The interest of the prosecutor is "not that [the government] shall win a case, but that justice shall be done.... It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Commonwealth v. Keo, 467 Mass. 25, 35-36 (2014), quoting Berger v. United States, 295 U.S. 78, 88 (1935). See also Commonwealth v. Shelley, 374 Mass. 466, 472 (1978) ("The prosecuting attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."). Prosecutors may "argu[e] forcefully for a conviction based on the evidence" and reasonable inferences therefrom but "should not refer to the defendant's failure to testify, misstate the evidence or refer to facts not in evidence, interject personal belief in the defendant's guilt, play on racial, ethnic, or religious prejudice or on the jury's sympathy or emotions, or comment on the consequences of a verdict" (footnotes omitted). Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987). Prosecutors should also refrain from making comments that "undermine[] the spirit," if not "the letter," of a judge's prior ruling. Commonwealth v. Durand, 475 Mass. 657, 672 (2016) (prosecutor's comment, while not prejudicial, "unfairly suggested that the defendant withheld . . . information, and that this act reflected consciousness of guilt").
Within reason, prosecutors may comment on the tactics and strategy of the defense. Compare Commonwealth v. Felder, 455 Mass. 359, 369 (2009) ("When read in context, there was no error in the prosecutor's limited references to the attempts by defense counsel to create 'smoke screen[s].'"), Commonwealth v. Espada, 450 Mass. 687, 699 (2008) (not improper for prosecutor to refer to defendant's "story as 'ridiculous'"), Commonwealth v. Raposa, 440 Mass. 684, 697 (2004) (not improper for prosecutor to remark, "'I mean, thank goodness you folks have notes . . . because it's not what [defense counsel] tells you the evidence is,'" or to describe defense counsel "as an attorney able to 'spin gold from straw'"), and Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 401 (1975) ("Comment by the prosecutor on the tactics of the defense, based on the evidence and what the jury could observe in the court room, is permissible"), with Commonwealth v. Gentile, 437 Mass. 569, 580-581 (2002) ("Characterizing the defense tactic as 'despicable' goes beyond labeling it as unworthy of belief or lacking in merit and smacks more of an ad hominem attack."), and Commonwealth v. McCravy, 430 Mass. 758, 764 (2000) (prosecutor may address a particular point in defense counsel's closing argument as a sham but may not characterize the entire defense as such). See also Commonwealth v. Silanskas, 433 Mass. 678, 702-703 (2001) (improper to comment on length of defense closing). "[A] prosecutor is free to marshal the evidence in the Commonwealth's favor and to explain why the defendant's arguments are unfounded" but should avoid mocking such arguments with excessive rhetoric. Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 313(2021) (excessive for prosecutor to tell jury "to cast aside this ridiculous, ridiculous notion that the defendant did not stomp on [the victim's] head").
A prosecutor must be careful in making comments about defense counsel. See Commonwealth v. Lewis, 465 Mass. 119, 132 (2013) (improper for prosecutor to argue that defense counsel was lying); Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002) (improper to characterize defense counsel as "obscuring the truth or intentionally misleading the jury"); Commonwealth v. Hawley, 380 Mass. 70, 84-85 (1980) ("impropriety lay in the prosecutor's suggestion that defense counsel was an active participant, if not the leader or mastermind, in the commission of the crimes of perjury"); Commonwealth v. Burts, 68 Mass. App. Ct. 684, 687-688(2007) ("Criticisms of the defendant's attorney, including the prosecutor's urging of the jurors to be angry with the attorney, were improper and, among other things, impugned two basic constitutional rights, that of counsel, as well as the right of a defendant to make his defense."); Commonwealth v. Awad, 47 Mass. App. Ct. 139, 142(1999) ("Disparaging remarks about the qualifications or motivations of defense counsel, or lawyers in general, are disfavored.").
Similarly, a prosecutor may not engage in "prejudicial name-calling." Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 328(2001). See Commonwealth v. Rutherford, 476 Mass. 639, 644 (2017) (arguing that expert "needs to become a human being" is inappropriate); Commonwealth v. Cosme, 410 Mass. 746, 754 (1991) (prosecutor's comments regarding two defense witnesses, including referring to them as "dog and pony show," were "tasteless and improper"); Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 511(2009) ("A prosecutor should not use extreme epithets to characterize the defendant.").
"A prosecutor's role at a trial does not change where the defendant represents himself." Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236, 240 n.3 (1990).
The disciplinary authority governing the special responsibilities of a prosecutor is Mass. R. Prof. C. 3.8(2016).
Retaliatory Reply. "Fighting fire with fire" does not mean that a prosecutor has a right to exceed the proper bounds of closing argument because defense counsel did so. It means only that "a prosecutor may properly comment to correct 'an erroneous impression created by opposing counsel.'" Commonwealth v. Kozec, 399 Mass. 514, 519 n.9 (1987), quoting Commonwealth v. Bradshaw , 385 Mass. 244, 277 (1982). Compare Commonwealth v. Sun, 490 Mass. 196, 218-219 (2022) (prosecutor's statement that others involved in murder "may deserve worse than they may get" was proper rebuttal to defense counsel's suggestion that codefendant received greatly reduced sentence as result of plea negotiations), Commonwealth v. Rivera, 425 Mass. 633, 647 (1997) ("The prosecutor was entitled to respond to defense counsel's improper suggestions regarding the use of prior convictions, and his reminder to the jury of the limited use of the defendant's prior convictions, although not artful, is not a ground for reversal."), and Commonwealth v. Prendergast, 385 Mass. 625, 633-634 (1982) (where defense counsel cited defendant's hospital records as evidence that defendant was mentally ill and dangerous and, therefore, not criminally responsible, prosecutor's statement that hospital records did not prevent jury from finding defendant criminally responsible was within "right of retaliatory reply"), with Commonwealth v. Lopes, 478 Mass. 593, 607 (2018) (prosecutor's characterizations of defense argument as "insult," "farce," and "distraction" were overly aggressive response), and Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 296(2003) (prosecutor "exceeded the bounds of fair, corrective response" when he "impermissibly appealed to the jury's emotional concern for crime-free streets by inferentially urging their trust in the police witnesses who had long protected those streets").
Subsection (b)(3)(A). This subsection is derived from Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005); Commonwealth v. Pearce, 427 Mass. 642, 646 (1998); and Hart v. Morris & Co., 259 Mass. 211, 214-215 (1927). The right to argue inferences from the evidence does not include the right to "lead the jury to an improper inference not from the evidence but from the apparent personal knowledge of the attorney." Commonwealth v. Nordstrom, 364 Mass. 310, 315 (1973). See also Commonwealth v. Jones, 471 Mass. 138, 147-149 (2015) (improper for prosecutor to argue that defendant might have assaulted another victim if child had not moved away).
A party may not misstate the evidence. See Commonwealth v. Sanders, 451 Mass. 290, 298-300 (2008) (multiple misstatements of evidence); Commonwealth v. Coren, 437 Mass. 723, 731 (2002) ("We conclude that the prosecutor exceeded the scope of proper argument by misstating important aspects of the testimony beyond inferences that might reasonably have been drawn from the evidence, and thereby committed error."); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 257(2006) (prosecutor misstated evidence by telling jury that trooper detected "strong" odor of alcohol where trooper's testimony was that he detected "moderate" odor).
A party may not refer to facts not in evidence. See Commonwealth v. Brown, 490 Mass. 171, 193 (2022) (no evidence to support prosecutor's statements that defendant was "plotting" to kill victim); Commonwealth v. Sheehan, 435 Mass. 183, 191 (2001) (prosecutor had "no support in the evidence for labelling the defendant a 'predator,' and the remark was unwarranted"). If evidence has been excluded, a party may not exploit the absence of that evidence in closing argument, nor may a party argue that evidence would have been available but for a prohibition of law. See Commonwealth v. Dirgo, 474 Mass. 1012, 1015-1016 (2016) (error for prosecutor to argue she could have provided "parade" of witnesses to corroborate complainant's testimony but for first complaint doctrine); Commonwealth v. Harris, 443 Mass. 714, 732 (2005) ("Counsel may not, in closing, 'exploit[] the absence of evidence that had been excluded at his request.' Such exploitation of absent, excluded evidence is 'fundamentally unfair' and 'reprehensible.'" [Citations omitted].); Commonwealth v. Grimshaw, 412 Mass. 505, 508 (1992) ("A prosecutor is barred from referring in closing argument to matter that has been excluded from evidence, and a prosecutor should also refrain from inviting an inference from the jury about the same excluded subject matter" [citation omitted].). It is improper to suggest that witnesses listed but not called would have provided favorable evidence. Commonwealth v. Wardsworth, 482 Mass. 454, 479-480 (2019).
A party may not use evidence for a purpose other than the limited purpose for which it was admitted. See Commonwealth v. Niemic, 483 Mass. 571, 584-585 (2019) ("prosecutor's repeated use of what had been admitted for a limited purpose as substantive evidence . . . undermined the heart of the defense"); Commonwealth v. Howard, 469 Mass. 721, 738 (2014) (even when evidence of prior bad acts has been properly admitted, improper to cite that evidence in support of propensity-based argument in closing); Commonwealth v. Daley, 439 Mass. 558, 565-566 & n.3 (2003) (error for prosecutor to argue that "defendant's 'character' as a dealer in crack cocaine and as a 'thief' should be used by the jury in assessing his credibility" where evidence was admitted for impeachment purposes only); Commonwealth v. Rosa, 412 Mass. 147, 156 (1992) ("A prosecutor may not present to the jury evidence admitted for a limited purpose as if it were substantive evidence."); Commonwealth v. Burns, 49 Mass. App. Ct. 677, 683(2000) (where prosecutor impeached witness with grand jury testimony, subsequent "substantive use" of same testimony in closing argument was improper).
It is improper to argue that a witness should be believed because the witness appeared in court to testify. Commonwealth v. Polk, 462 Mass. 23, 39 (2012). A prosecutor may argue that a testifying defendant's credibility may be scrutinized because of the defendant's interest in the outcome of the case. However, it is improper to argue that the testimony of a defendant is inherently incredible and should not be considered as evidence. Commonwealth v. Niemic, 472 Mass. 665, 674-675 (2015).
Child Sexual Assault Cases. A prosecutor must proceed with great caution before suggesting that a child who is alleged to be the victim of a sexual assault could only have acquired knowledge of sexual acts from the experience of victimization. See Commonwealth v. Beaudry, 445 Mass. 577, 580, 581-582 (2005) (declining to assume that twelve-year-old child is unfamiliar with sexual acts and terminology, while noting that argument that child had age-inappropriate knowledge could be made if supported by expert witness testimony); Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179(2008), quoting Commonwealth v. Fuller, 22 Mass. App. Ct. 152, 158(1986) ("[A] prosecutor may not suggest that a child sexual abuse victim 'wouldn't have that kind of idea in her head unless something like that happened to her.'").
Collateral Sources of Compensation. In general, information of "outside source" compensation is legally irrelevant and should not be referred to in the closing argument. See Goldstein v. Gontarz, 364 Mass. 800, 808-809 (1974). See also Commonwealth v. Murray, 22 Mass. App. Ct. 984, 985(1986) (improper to suggest that victim of theft had recovered his loss because recovery would not diminish crime).
Reference to Damages. Rule 51(a)(2) of the Massachusetts Rules of Civil Procedure allows parties in civil cases to suggest a specific amount of monetary damages during closing argument. However, "[a]n argument concerning money damages indulging in significant references to numerical amounts that have no basis in the record is improper. Repeated, substantive discussions of hypothetical damages in other circumstances, and especially references to verdicts in other cases, are not proper." Harlow v. Chin, 405 Mass. 697, 704 (1989).
Missing Witnesses. If the trial judge declines to give a missing witness instruction, counsel is not permitted to argue that an adverse inference should be drawn against the other side for not calling the witness. Commonwealth v. Saletino, 449 Mass. 657, 670-672 (2007).
Consciousness of Guilt. A party is permitted to argue consciousness of guilt or liability even without a jury instruction. Commonwealth v. Franklin, 465 Mass. 895, 915 (2013).
Use of Props. Counsel may not display objects not in evidence and should discuss any "plan to employ dramatic props with the judge during the pre-argument conference." Commonwealth v. Hoppin, 387 Mass. 25, 30-32 (1982).
Use of Chalks. A judge has "considerable, but not unrestrained, discretion as to the degree to which chalks can be used" to illustrate the evidence for the jury and to make use of such aids in closing argument (citation omitted). Commonwealth v. Walker, 10 Mass. App. Ct. 255, 264(1980). See also Goldstein v. Gontarz, 364 Mass. 800, 814 (1974) ("Permission to use a blackboard as a graphic aid is discretionary with the trial judge.").
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e) (2015), 3.8(i) (1999), 8.4(d) (2015); Private Reprimand No. 91-21, 7 Mass. Att'y Discipline Rep. 356 (1991) (among other issues, lawyer in administrative proceeding alluded in closing to matters ruled inadmissible); Admonition No. 05-04, 21 Mass. Att'y Discipline Rep. 671 (2005), at http://perma.cc/Y8R2-ZWEJ (among other issues, prosecutor referred in closing arguments to police reports excluded from evidence); and Admonition No. 01-20, 17 Mass. Att'y Discipline Rep. 694 (2001), at http://perma.cc/R5FD-E5JX (prosecutor referred in closing argument to defendant's prior convictions, despite instructions from judge not to do so).
Subsection (b)(3)(B). This subsection is derived from Commonwealth v. Kee, 449 Mass. 550, 560 (2007). See also Warren v. Edgeco, Inc., 8 Mass. App. Ct. 171, 177(1979) (improper for plaintiff's counsel to express personal opinions on strength of evidence and veracity of witness). Counsel should avoid phrases such as "I think," "I feel," and "I believe" because they create the risk of conveying to the jury that counsel is expressing a personal opinion concerning the evidence or the credibility of witnesses. See Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997). But see Commonwealth v. Mitchell, 428 Mass. 852, 856-857 (1999) (prosecutor's "use of phrases 'I think,' 'I suggest,' to preface some remarks did not, viewed in their proper context, imply that the prosecutor had personal knowledge or was stating a personal belief"). Prosecutors should avoid the repeated use of the pronoun "we" for the same reason. See Commonwealth v. Burts, 68 Mass. App. Ct. 684, 688-689(2007).
Improper Vouching. An attorney may not express a personal belief in a witness's credibility or suggest that the attorney has knowledge of facts beyond the evidence. Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). Thus, argument based on an attorney's "own subjective assessment of the evidence is improper." Commonwealth v. Santiago, 425 Mass. 491, 498 (1997), cert. denied, 525 U.S. 1003 (1998). See also Commonwealth v. Earltop, 372 Mass. 199, 203 (1977) (error for prosecutor to argue that he was "firmly convinced in [his] mind" of defendant's guilt). Cf. Commonwealth v. Sun, 490 Mass. 196, 219-221 (2022) (not improper vouching to characterize witness's testimony as "reliable and accurate" based on fair inferences from evidence); Commonwealth v. Gonsalves, 488 Mass. 827, 841-842 (2022) (not improper vouching for prosecutor to repeat witness's explanation about why her statements to police changed); Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018) (use of rhetorical questions regarding motive to testify and credibility of witnesses was not improper vouching); Kee, 449 Mass. at 560 (comments about experience of police witnesses proper to show why those witnesses should be believed and did not amount to improper vouching); Commonwealth v. Kozec, 399 Mass. 514, 521 (1987) ("It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved.").
No Motive to Lie. There is no per se rule against a prosecutor's comment that a witness has no motive to lie when the comment is based on the evidence and is understood as a reply to a defense attack on the credibility of the witness. See Commonwealth v. Smith, 450 Mass. 395, 408 (2008); Commonwealth v. Murchison, 418 Mass. 58, 61 (1994); Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179(2008). If defense counsel challenges the credibility of a witness in closing argument, the prosecutor may invite the jury to consider whether the witness has a motive to lie and may identify the evidence that demonstrates the accuracy and reliability of the witness's testimony. See Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012). Compare Commonwealth v. Ramos , 73 Mass. App. Ct. 824, 826(2009) ("prosecutor may not . . . suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify"), with Commonwealth v. Pina, 430 Mass. 266, 269 (1999) ("prosecutor may argue that it took 'courage' or 'character' for a witness to testify" where there is evidence of that witness's fear of testifying).
Plea Agreements. Where a plea agreement requires a witness to give truthful testimony, the prosecutor must avoid any argument that the government has special knowledge or a method to determine the witness's veracity. See Commonwealth v. Marrero, 436 Mass. 488, 501 (2002) ("[A]lthough the prosecutor was free to encourage the jury to read the [plea and immunity] agreement (especially in light of the defendants' closing arguments to the jury that [the witness] was a 'pretty street smart' witness and one who 'got her deal' under which she 'ha[d] to testify a certain way'), he should not have stated that [the witness] 'tells the truth, at least that's as far as [he] could follow it'" [footnote omitted].); Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989) ("A prosecutor in closing argument may restate the government's agreement with the witness and may argue reasonable inferences from the plea agreement's requirement of truthful testimony. If, however, a prosecutor goes beyond the terms and circumstances of the plea agreement and suggests that the government has special knowledge by which it can verify the witness's testimony, reversible error may occur." [Citations omitted.]).
Disciplinary Authority. See Mass. R. Prof. C. 3.4(e) (2015), 8.4(d) (2015); Matter of Nelson, 25 Mass. Att'y Discipline Rep. 413 (2009), at http://perma.cc/86SC-PSRJ (among other issues, prosecutor improperly vouched for witnesses, claiming, as to one, to have verified witness's account by following his route to crime scene and, as to other, to have "looked at" witness and seen how he had turned his life around); Matter of the Discipline of an Attorney, 2 Mass. Att'y Discipline Rep. 110, 112 (1980) (among other issues, prosecutor appeared to vouch for credibility of police witnesses and said-as to defendant's testimony to the contrary-"believe me," no one in Chelsea is selling heroin at half price, and that "I would guess" the defendant supplemented his income by selling drugs); Private Reprimand No. 91-21, 7 Mass. Att'y Discipline Rep. 356 (1991) (among other issues, lawyer in closing argument in administrative proceeding presented his personal opinion on merits of case).
Subsection (b)(3)(C). This subsection is derived from Commonwealth v. Kozec, 399 Mass. 514, 517 (1987); Commonwealth v. Smith, 387 Mass. 900, 909-910 (1983); Commonwealth v. Shelley, 374 Mass. 466, 470 (1978); and London v. Bay State St. Ry. Co., 231 Mass. 480, 485-486 (1919). An appeal to sympathy obfuscates the "clarity with which the jury would look at the evidence and encourage[s] the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt." Commonwealth v. Guy, 454 Mass. 440, 445 (2009), quoting Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), cert. denied, 525 U.S. 1003 (1998). It is permissible to argue relevant inferences from the evidence, even where the subject matter is potentially gruesome or inflammatory, but care must be given not to urge the jury to go beyond the proper use of such evidence and to make a decision based on improper considerations. See Commonwealth v. Raymond, 424 Mass. 382, 389-390 (1997) ("the gruesomeness of the crimes and the suffering of the victims were relevant to the issue whether the defendant's actions constituted extreme atrocity or cruelty").
"Comments that appeal to emotions are ones that have the effect of engendering the jury's anger toward the defendant or [defense] counsel so as to evoke an emotional rather than an intellectual response." Commonwealth v. Seng, 436 Mass. 537, 556 (2002). See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 419 (2021) (statement that cigarette manufacturer "invented a new kind of cancer" was improper as it was designed to enflame jurors' passions and sympathies even though statement was loosely based on evidence at trial); Commonwealth v. Rutherford, 476 Mass. 639, 645-647 (2017) (improper to argue that victim's life was worth $500, that jurors place themselves in victim's shoes, and that victim was "crawling away to die," leaving bloody hand and knee prints on floor, after giving up any hope of survival); Commonwealth v. Cadet, 473 Mass. 173, 181 (2015) (while court emphasized that "the better practice is for the prosecutor, defense counsel, the judge, and all of the witnesses to refrain from describing the person killed as the 'victim,'" jury was likely not swayed by the use of the term). See also Commonwealth v. Moore, 489 Mass. 735, 753-754 & nn.29-30 (2022) (improper to ask jury to "[t]hink about what [murder victim] must have been thinking" when defendant pointed gun at her, and to emphasize sympathetic characteristics of victims, a mother and young child); Commonwealth v. Niemic, 472 Mass. 665, 675 (2015) (improper to comment on emotional impact of victim's death on witnesses who saw "the color run right out of [victim], right down to gray"); Commonwealth v. Lodge, 431 Mass. 461, 470-471 (2000) (improper to argue that victim was "entitled to the right to live and [the defendant] took it"); Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 311-313(2021) (prosecutor calling defendant a "bully" thirteen times in closing argument and contrasting victim's flattering photograph with defendant's booking photo improperly sought to invoke jury sympathy); Commonwealth v. Ward, 28 Mass. App. Ct. 292, 295(1990) (repeated references to extent of urban crime and duty to aid law-abiding citizens was an improper appeal to emotions and fear of jury).
While prosecutors may "humanize the proceedings" by giving some biographical detail about the victim, they must not do so in a way that appeals to the jury's sympathy. See Commonwealth v. Kolenovic, 478 Mass. 189, 200-201 (2017) (improper appeal to sympathy for prosecutor to hold up victim's photograph and ask, "What did he do that night to deserve to be sliced and stabbed to death?"). Words such as "brutally" and "viciously" may be used when they are apt descriptions of the evidence. Commonwealth v. Mejia, 463 Mass. 243, 254 (2012). Cf. Commonwealth v. Teixeira, 486 Mass. 617, 633-636 (2021) (suggestion that victim was "cowering" was merely speculative and prone to inflame jury).
Disciplinary Authority. See Mass. R. Prof. C. 8.4(d) (2015); Matter of Nelson, 25 Mass. Att'y Discipline Rep. 413 (2009), at http://perma.cc/86SC-PSRJ (among other issues, prosecutor improperly implied to jury that they should avenge victim); and Admonition No. 01-03, 17 Mass. Att'y Discipline Rep. 659 (2001), at http://perma.cc/R5FD-E5JX (prosecutor made improper appeal to sympathy for victim).
Illustrations.
- Defendant's Lack of Remorse. It is improper for a prosecutor to comment on the defendant's lack of remorse. Commonwealth v. Borodine, 371 Mass. 1, 9 (1976), cert. denied, 429 U.S. 1049 (1977). It is also improper to argue guilt based on the prosecutor's perception of the defendant's expression when the victim testified. Commonwealth v. Kozec, 399 Mass. 514, 523 (1987). See also Commonwealth v. Moffat, 486 Mass. 193, 202 (2020) (drawing connection between defendant's "stone cold" and emotionless testimony at trial with "stone cold" nature of killing went beyond benign comments about defendant's credibility). Comments about the defendant's lack of remorse may be cured by instruction. Borodine , 371 Mass. at 9-10.
- Justice to the Victim. It is improper for a prosecutor to ask the jury to give justice to the victim. Commonwealth v. Niemic, 472 Mass. 665, 676 (2015). A criminal trial is not "a dispute between a deceased victim on the one hand, and the defendant on the other," and a prosecutor is not permitted "to exhort the jury to dispense justice evenly between them." Id. See also Commonwealth v. Torres, 437 Mass. 460, 465 (2002) (improper to urge jurors to "answer the call for justice" and hold defendant accountable).
- Resort to Stereotypes. Prosecutors and defense counsel should refrain from what is termed "broadbrushing" or arguments based on stereotypes. See Commonwealth v. Murchison, 35 Mass. App. Ct. 269, 274-75(1993) (improper for defense counsel to characterize police witnesses as "soldiers in a war on drugs" and "zealots who sacrifice the truth"). The use of language containing "conscious or subconscious racist concepts and frames" is impermissible in closing argument. See Commonwealth v. Tate, 486 Mass. 663, 674 (2021) ("drawing distinctions between suburban and urban defendants may be interpreted as grossly improper racist 'dog whistles'"). See also Commonwealth v. Clary, 388 Mass. 583, 592 (1983) (insinuations regarding defendant's sexual preference were highly improper and likely to instigate prejudice against her).
- Righting Corporate Wrongs. In civil cases, it is improper to appeal to biases against large corporations and to urge the jury to right a corporate wrong. See Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 511-512, 517 (2021) (counsel improperly urged jury to decide case with "us versus them" attitude and to act as "voice of the community" by punishing corporate defendants); London v. Bay State St. Ry. Co., 231 Mass. 480, 485-486 (1919) (summation improper where it covertly appealed to jury "to make this great and powerful corporation . . . feel the jury's power").
- Use of Epithets and Prejudicial Name-Calling. Prosecutors should not use extreme epithets to characterize the defendant or defense witnesses, nor should they resort to prejudicial name-calling. See Commonwealth v. Saunders , 75 Mass. App. Ct. 505, 511(2009) (improper to describe defendant as "[s]wooping down like a vulture" to take advantage of victim); Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 328(2001) (prosecutor went too far by describing defense witness as a "punk" and a "stooge"). See also Commonwealth v. Bishop, 461 Mass. 586, 598 (2012) (although prosecutor may remind jury that expert witness was retained by defendant, improper to play on jury's prejudices by suggesting that expert's testimony was "bought" or to characterize expert as a "hired gun" where "there was no evidence that he was paid more than his customary fee").
Subsection (b)(3)(D). This subsection is derived from Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997), where the court cautioned against so-called "Golden Rule" arguments in which jurors are asked to place themselves or a relative in the shoes of a party, witness, or victim. See also Commonwealth v. Witkowski, 487 Mass. 675, 684-685 (2021) ("jury should not be asked to put themselves 'in the shoes' of the victim, or otherwise be asked to identify with the victim"); Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 511, 517 (2021) (improper for plaintiff's counsel to make "golden rule" arguments by "asking the jury to identify with the plaintiff").
Subsection (b)(3)(E). This subsection is derived from, among other cases, Commonwealth v. Thomas, 401 Mass. 109, 113 (1987), quoting Commonwealth v. Smith, 387 Mass. 900, 903 (1983) ("We reiterate that '[l]awyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights.'"); Commonwealth v. Amirault, 404 Mass. 221, 240 (1989) ("prosecutor cannot comment on a defendant's failure to contradict testimony and cannot make statements that shift the burden of proof from the Commonwealth to the defendant"); and Commonwealth v. Person, 400 Mass. 136, 141 (1987) (prosecutor may not ask jury to draw inference of guilt from defendant's exercise of right to advice of counsel).
Misstatements of Law. For examples of misstatements of law during closing arguments, see Commonwealth v. Scesny, 472 Mass. 185, 202 (2015) (error for prosecutor to repeatedly characterize admitted defense evidence related to third-party defense as "irrelevant and immaterial 'information,' unworthy of even being called 'evidence'"); Commonwealth v. Morales, 461 Mass. 765, 783 (2012) (prosecutor misstated law of deliberately premeditated murder); Commonwealth v. Weaver, 400 Mass. 612, 615-616 (1987) (error to suggest that prosecutor's duties were to present all evidence and help jury discover truth, whereas function of defense counsel was to create doubts in minds of jury); Commonwealth v. Killelea, 370 Mass. 638, 646 (1976) (misstatement of meaning of not guilty by reason of insanity); and Commonwealth v. Pagano, 47 Mass. App. Ct. 55, 62(1999) (misstatement of presumption of innocence).
A party should not attempt to define "reasonable doubt." Commonwealth v. Snow, 30 Mass. App. Ct. 443, 447(1991). Also, it is not proper for a prosecutor to tell jurors not to be "intimidated" by the phrase "beyond a reasonable doubt." Commonwealth v. Cook, 419 Mass. 192, 203 (1994).
Barring any misstatements of law, a party is allowed to "argue the law as applied to the evidence." Bloom v. Town Taxi, Inc., 336 Mass. 78, 80 (1957) (refusal to allow plaintiffs to argue the law as applied to the evidence impaired right "to have their cases fully presented to the jury").
Shifting Burden of Proof. For examples of arguments that were deemed to amount to burden shifting, see Commonwealth v. Brown, 490 Mass. 171, 194 (2022) (improper for prosecutor to suggest that defendant should have offered explanation for his behavior); Commonwealth v. Rivera , 482 Mass. 259, 271 (2019) (prosecutor's repeated use of "justification" in closing argument improperly suggested that defendant was required to demonstrate justification for killing); and Commonwealth v. Trinh, 458 Mass. 776, 787 (2011) (prosecutor engaged in burden shifting by suggesting that defendant had "an affirmative duty to bring forth evidence of his innocence").
For examples of arguments that were deemed not to amount to burden shifting, see Commonwealth v. Fernandes, 478 Mass. 725, 741-742 (2018) (no burden shifting where prosecutor responded to defense counsel's closing argument by arguing that evidence presented was not a series of coincidences and using rhetorical questions to suggest that defense theory was implausible); Commonwealth v. Silva, 471 Mass. 610, 622-623 (2015) (permissible for prosecutor to state that "there is not a scintilla of evidence to support" a proposition advanced by defense because statement was not directed at defendant's failure to testify); Commonwealth v. Nelson, 468 Mass. 1, 12-13 (2014) (when viewed in context of entire argument, prosecutor's reference to lack of any evidence that victim had knife was not improper because it was directed more at weakness of defendant's claim of self-defense than at defendant's failure to testify or produce evidence); Commonwealth v. Johnson, 463 Mass. 95, 112 (2012) ("on balance," prosecutor's statements to effect that facts were "stubborn" and "hard" for defendant to "deal with" or "get around" amounted to "permissible commentary on the strength of the Commonwealth's case, which did not cross over into burden shifting"); Commonwealth v. Miranda, 458 Mass. 100, 117 (2010) (prosecutor's remarks that may have implied that defendant did not contest balance of Commonwealth's evidence from certain witnesses did "not approach the sort of burden shifting that results from direct comment on a defendant's failure to contradict testimony"); Commonwealth v. Stewart, 454 Mass. 527, 539-540 (2009) (albeit "close to the line," there was no burden shifting where prosecutor stated that while there may be no "trace evidence" placing defendant at scene, "there is nothing that excludes him from being there; that proves he wasn't there"); Commonwealth v. Montez, 450 Mass. 736, 747 (2008) (prosecutor's statement that defense counsel never addressed certain evidence was not comment on defendant's failure to present evidence and did not impermissibly shift burden of proof); Commonwealth v. Feroli, 407 Mass. 405, 408-409 (1990) ("A prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case, even though he may, in so doing, prompt some collateral or passing reflection on the fact that the defendant declined to testify."); Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202-204(2019) (no burden shifting where prosecutor noted that defendant had failed to produce evidence promised in defendant's opening statement); and Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 567(2010) (prosecutor's statements constituted commentary on the weakness of the defense, not a suggestion "that the defendant had failed to prove his innocence").
Inferring Guilt from Exercise of Constitutional Right. A prosecutor may not ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right. See Commonwealth v. Person, 400 Mass. 136, 141 (1987) (prosecutor may not ask jury to draw inference of guilt from defendant's exercise of right to advice of counsel); Commonwealth v. Hughes, 82 Mass. App. Ct. 21, 29-31(2012) ("plain error" for prosecutor to suggest in "closing argument that the jury could conclude that the Commonwealth's case was strong, because the defendant chose to put on witnesses even though he had no obligation to do so").
Commenting on Exercise of Right to Remain Silent. Except in rare circumstances, a prosecutor may not comment on the defendant's exercise of the right to remain silent. Compare Doyle v. Ohio, 426 U.S. 610, 618 (1976) (a defendant's post-Miranda silence cannot be used "to impeach an explanation subsequently offered at trial"), Commonwealth v. Walters, 485 Mass. 271, 292 (2020) (improper for prosecutor to argue that psychologist's assessment could not be trusted because defendant was unlikely to tell truth after receiving Lamb warning, which is extension of defendant's right to remain silent), Commonwealth v. Beneche, 458 Mass. 61, 75-76 (2010) (prosecutor should not have mentioned defendant's statement, "I don't want to talk about it," because "a defendant's statements about his desire not to speak with police may suggest to the jury that the defendant is guilty simply because he chose to exercise his constitutional right to silence"), and Commonwealth v. Brum, 438 Mass. 103, 121 (2003) ("It does not appear that there was any need to resort to the defendant's invocation of his right to remain silent as a method of explaining any abrupt end to either interview, or any other permissible basis for admitting evidence of the defendant's refusal to answer further questions."), with Commonwealth v. Torres, 442 Mass. 554, 578 (2004) ("we have recognized that, in some rare circumstances, a defendant's invocation of his right to remain silent may be presented to the jury in order to avoid juror confusion about why an interview ended abruptly"), and cases cited, Commonwealth v. Caputo, 439 Mass. 153, 166 (2003) ("prosecutor's reference in his closing statement to the defendant's invocation of his right to remain silent was permissible" because "defense counsel elicited [testimony that defendant invoked right], and because in his closing argument the prosecutor referred to the statement solely to challenge the defendant's claim of coercion"), and Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 419(2016) (prosecutor's comments on "omissions" in statement defendant gave to police after receiving Miranda warnings were not improper because "defendant had a constitutional right to silence, not a right to tell a story and then avoid explaining crucial omissions by stating they were an exercise of the right to silence").
Commenting on Criminal Defendant Not Testifying. A prosecutor may not ask the jury to draw an inference of guilt from a defendant's decision not to testify at trial. Griffin v. California, 380 U.S. 609, 615 (1965). Accordingly, a prosecutor may not make any statement that is "reasonably susceptible" of being interpreted as a comment on a defendant's exercise of that right. Commonwealth v. Pena, 455 Mass. 1, 19 (2009); Commonwealth v. Botelho, 87 Mass. App. Ct. 846, 853(2015). See Commonwealth v. Grant, 418 Mass. 76, 83 (1994), quoting Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980) (It is "well settled that a prosecutor may ask the jury rhetorical questions that touch on the defendant's constitutional right not to incriminate himself without violating that right provided the questions are not 'of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify.'").
References to Evidence as Uncontradicted or Uncontested. "References to material facts as uncontradicted or uncontested invariably approach the border of the forbidden territory of speculation regarding the absence of testimony by the defendant." Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 366-367(2001). Thus, "[a] claim that certain evidence is uncontested should be made with caution and only after careful reflection concerning the specific circumstances in which the defendant could have produced contradictory evidence." Commonwealth v. Hawley, 380 Mass. 70, 83-84 (1980). Accord Commonwealth v. Wilson, 443 Mass. 122, 132 (2004). See also Commonwealth v. Borodine, 371 Mass. 1, 10 (1976), cert. denied, 429 U.S. 1049 (1977) (prosecutor's references to facts as "uncontested" were improper because defendant was only person who could contradict them).
Commenting on Criminal Defendant's Testimony. A "prosecutor may, if there is a basis in the evidence introduced at trial, attack the credibility of a defendant on the ground that his testimony has been shaped or changed in response to listening to the testimony of other witnesses." Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004). The propriety of such a comment may depend on whether the defendant made a pretrial statement to police. Compare Commonwealth v. Mendez, 476 Mass. 512, 521-522 (2017) (prosecutor permissibly argued that defendant conformed his trial testimony to Commonwealth's evidence at trial when his initial statement to police officers on night of incident was different from his testimony at trial), with Commonwealth v. Person, 400 Mass. 136, 138-143 (1987) (prosecutor impermissibly commented on defendant's right to remain silent when he stated that defendant, who had not made pretrial statement, sat through prosecutor's presentation at trial and fabricated a story that countered prosecution's theory of case), and Commonwealth v. McCray, 40 Mass. App. Ct. 936, 937(1996) ("prosecutor erred when he argued that the defendant had 'the benefit of [the complainant's] testimony over the course of the two days' and 'was able to conform her story with that'").
On a related matter, a prosecutor should generally avoid suggesting that testimony was "'rehearse[d]' because it may impinge on the defendant's right to prepare for trial." Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 314(2011). But see Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 498(2012), quoting Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 574(1983) ("Although it would have been preferable had the prosecutor avoided the word 'rehearsed,' there is a qualitative difference between implying that it is improper for counsel to prepare a witness and 'casting doubt on testimony by calling attention to extraordinary parallels between what a group of witnesses who could talk to each other have said on the stand.'").
Prearrest Silence. Commenting on a defendant's prearrest silence should be approached with caution but is proper if there is a basis in the evidence that it would have been natural for the defendant to speak in the circumstances. Compare Commonwealth v. Womack, 457 Mass. 268, 277-278 (2010) ("The defendant's silence in response to [the lieutenant's] query into his reason for standing outside the store for two seconds without entering was not an exercise of his right to remain silent, but a failure to respond to a particular question. As such it was admissible in evidence, and subject to comment" [citation omitted].), and Commonwealth v. Thompson, 431 Mass. 108, 118, cert. denied, 531 U.S. 864 (2000) ("[T]he prosecutor here did not comment on the defendant's failure to proclaim his innocence, but rather on his failure to ask appropriate questions that an innocent party would ordinarily ask. The defendant did not invoke at any time his right to stop the questioning and be silent. Instead, the defendant agreed to give a far-ranging statement over several hours. It was therefore proper for the prosecutor to comment on the fact that the defendant did not ask appropriate questions."), with Commonwealth v. Gardner, 479 Mass. 764, 772 (2018) (despite fact that defendant did not assert self-defense until four days after arrest, prosecutor's reference to defendant's prearrest silence was improper), and Commonwealth v. Haas, 373 Mass. 545, 558-559 (1977) (prosecutor's comments, asking jury to infer guilt from fact that defendant had not spontaneously volunteered his innocence during interrogation by police, were improper).
Statements Concerning Role of the Jury. A prosecutor may not make any comment that could be interpreted to suggest that jurors have a duty to convict. Commonwealth v. Miller , 457 Mass. 69, 79-80 (2010); Commonwealth v. Francis , 450 Mass. 132, 140 (2007). Nor should either party suggest that jurors may need to explain the verdict. Commonwealth v. Quinn, 61 Mass. App. Ct. 332, 334-335(2004). "It [is] also inappropriate for the prosecutor to tell the jurors that they [are] the 'conscience of the community.' They bear no such burden; their role in a trial is limited to finding the facts on the basis of the evidence dispassionately and impartially." Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 573(1991), cert. denied sub nom. Mathews v. Rakiey, 504 U.S. 922 (1992). See also Commonwealth v. Scesny, 472 Mass. 185, 200 (2015) ("prosecutor's characterization of his role as representing the 'citizens' ran the risk of suggesting that the prosecutor was representing the jurors-as-citizens against the defendant, and in that way misrepresenting or at least confusing the jurors' actual role as neutral fact finders"). Finally, while jurors may be encouraged to examine physical evidence, it is improper to suggest they conduct outside experiments or investigations. Commonwealth v. Beauchamp, 424 Mass. 682, 691 (1997).
Consequences of Verdict. A party should not discuss the consequences of a verdict with a jury. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999) ("clearly error for the prosecutor to address the issue of punishment" with jury); Commonwealth v. Ruddock, 428 Mass. 288, 292-293 (1998) ("Of course, a prosecutor should not argue to the jury that, if found not guilty by reason of insanity, a defendant will be released.").
Comment on Criminal Defendant's Courtroom Appearance or Conduct. In a criminal case, "a prosecutorial argument that the jury should draw inferences against a defendant who did nothing but behave properly in the courtroom is improper." Commonwealth v. Young, 399 Mass. 527, 531 (1987) (improper for prosecutor to ask jurors if they noticed how defendant "just sits there stone-faced, cool, never blinks an eye, doesn't get upset about anything" and suggest it was evidence of defendant's ability to control and conceal emotions). See also Commonwealth v. Kozec, 399 Mass. 514, 523 (1987) (unfair and improper for prosecutor to comment that "the defendant looked sorry when the victim testified because she knew the truth about what happened between them would come out"); Commonwealth v. Valliere, 366 Mass. 479, 494-495 (1974) (improper for prosecutor to suggest that defendant demonstrated consciousness of guilt by reading transcripts or suggesting questions to counsel). Contrast Commonwealth v. Smith, 387 Mass. 900, 907 (1983) (prosecutor's comments about defendant's demeanor during trial, including "smirking," "laughing," and "squirming," were permissible where jurors were in position to observe demeanor for themselves). Relevant observable changes in a defendant's appearance, however, are fair game. See Commonwealth v. Pina, 406 Mass. 540, 548 (1998) (where evidence showed that defendant changed hairstyle and shaved mustache soon after crime, proper for prosecutor to ask during closing why a person would do that). So too are relevant physical characteristics of a defendant. See Commonwealth v. Cohen, 412 Mass. 375, 385-386 (1992) (proper for prosecutor to point out that defendant was right-handed where it could be inferred from the evidence that shooter held gun in right hand); Commonwealth v. Rogers, 43 Mass. App. Ct. 782, 787(1997) (proper to refer to defendant's size in comparison to size of victim).
Use of Rhetorical Questions. Rhetorical questions are not per se impermissible. See Commonwealth v. Habarek, 402 Mass. 105, 111 (1988) (no error in prosecutor asking rhetorically and in reference to motive, "Why? Why does a person do that?"); Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 541-542(2012) (to extent prosecutor's suggestion that victim's testimony was "guided by the truth" came "too close to explicit vouching," it was not reversible error when viewed in context of argument as a whole and judge's instruction that arguments are not evidence); Commonwealth v. Flint, 81 Mass. App. Ct. 794, 807(2012) ("In the face of . . . direct assertions of evidence of improper motives underlying the victim's accusations, it was fair for the prosecutor to reply by asking the jury rhetorically, 'Why would a person make up something like this? What is the motive to fabricate? Are they being honest? Are they responsive to questions? Are they being direct? Do they appear to be forthcoming? Do they appear to be genuine? Do they sound as if they are giving contrived answers?'").
Disciplinary Authority. See Mass. R. Prof. C. 8.4(d) (2015) ("It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.") and Admonition No. 05-04, 21 Mass. Att'y Discipline Rep. 671 (2005), at http://perma.cc/Y8R2-ZWEJ (among other issues, prosecutor, without court authorization, improperly commented during closing on defendant's failure to call a witness).
Subsection (b)(3)(F). This subsection is derived from Fyffe v. Massachusetts Bay Transp. Auth. , 86 Mass. App. Ct. 457, 478(2014). "Jury nullification is inconsistent with a jury's duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt." Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007). See Commonwealth v. Fernette, 398 Mass. 658, 670-671 n.23 (1986) ("We recognize that jurors may return verdicts which do not comport with the judge's instructions. We do not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge, or that the judge must inform them of their power."). Counsel should avoid any reference to the appellate process. Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997).
Subsection (b)(4). In criminal cases, the trial judge may defer resolution of a defendant's motion for a mistrial made during closing argument until after the jury returns a verdict. Commonwealth v. Brangan, 475 Mass. 143, 148 (2016). In civil cases, the judge must decide a motion for a mistrial when made. Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 511-517 (2021). However, "after a jury verdict, the appropriate vehicle to be used in seeking to have a case tried again is through a motion for a new trial." Id. at 508.
Subsection (c). This subsection is derived from Commonwealth v. Johnson, 374 Mass. 453, 458 (1978) ("[W]here an improper argument is addressed to a jury the attention of the judge should be called to it at once."), and Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (timely objection to improper closing argument followed by "focused, particularized [curative] instructions" is not sufficient to preserve for appeal the issue of adequacy of the curative instructions). See Harlow v. Chin, 405 Mass. 697, 706 (1989) (counsel must bring alleged errors and omissions in curative instruction to judge's attention at end of charge).
Subsection (d). This subsection is derived from Commonwealth v. Jasilewicz, 361 Mass. 877, 877 (1972); Commonwealth v. Witschi, 301 Mass. 459, 462 (1938); O'Neill v. Ross, 250 Mass. 92, 96-97 (1924); Posell v. Herscovitz, 237 Mass. 513, 514-515 (1921); and Commonwealth v. Truong, 34 Mass. App. Ct. 668, 671(1993). Judges "have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial." Beit v. Probate & Family Ct. Dep't, 385 Mass. 854, 859 (1982). See also Commonwealth v. Pearce, 427 Mass. 642, 646 (1998) (trial judges have authority to interrupt "any argument" not "based solely on the evidence and all inferences therefrom"); Commonwealth v. Cabot, 241 Mass. 131, 150-151 (1922) ("duty of the judge to emphasize the fact that the argument [by the prosecutor] had been grossly improper, to point out in plain, unmistakable language the particulars in which it was unwarranted and to instruct the jury to cast aside in their deliberations the improper considerations that had been presented to them"); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 529(1992) ("It is well established under our practice that a trial judge must take 'rigorous and emphatic action' to counteract prejudicial statements made in front of the jury."). A judge has "considerable latitude" in the "choice of methods" to correct improper argument. Commonwealth v. Watson, 377 Mass. 814, 823 (1979), quoting Commonwealth v. Clark, 3 Mass. App. Ct. 481, 488(1975). See Commonwealth v. Montecalvo, 367 Mass. 46, 56 (1975) (judge may guard against improper arguments by stopping counsel, instructing jury to disregard such an argument, or by combining both methods). Nonetheless, judges must take care not to chill or defeat zealous advocacy when fulfilling their duties to "protect the processes of orderly trial." Sussman v. Commonwealth, 374 Mass. 692, 696-697 (1978). See also Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675-676(1999) (judge must not prevent party from making relevant arguments that are based on evidence and fair inferences from evidence).
Responses to Improper Argument. For examples of proper responses to improper argument, see Gath v. M/A-Com, Inc., 440 Mass. 482, 495 (2003) (judge's instruction sufficient to correct improper argument on damages); Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17, 21(2010) (trial judge was appropriately specific and forceful in instructing jury to disregard reference in opening statement to blood alcohol level that would not be admitted in evidence); Salter v. Leventhal, 337 Mass. 679, 697-98 (1958); and Hart v. Morris & Co., 259 Mass. 211, 215 (1927). In contrast, a judge may not limit closing arguments to the line of thought that the judge believes will prevail or is most consistent with the evidence. O'Driscoll v. Lynn & Boston R.R., 180 Mass. 187, 190 (1902).
Preventative Measures. There are several practical steps that judges may take to minimize the risk of error in closing arguments. One practice is to conduct a pre-closing argument conference to address the boundary lines of proper argument and any questions counsel may have. Commonwealth v. Finstein, 426 Mass. 200, 205 n.1 (1997). A judge also may wish to give a cautionary instruction to the jury before closing argument. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 239-243(2013) (Agnes, J., concurring) ("the risk of improper closing arguments would be reduced if this practice became a matter of routine").
Section 611(f), Mode and Order of Examining Witnesses and Presenting Evidence: Reopening.