In Jean v. State, 27 So. 3d 784, 786 (Fla. Dist. Ct. App. 3d Dist., No. 3D08-2419, 2010) the defendant’s escape conviction was reversed because the judge precluded defense counsel from arguing that an element of the charge (lawful confinement) had not been proved: It is within the trial court's discretion to determine whether counsel's argument is improper. See Bigham v. State, 995 So. 2d 207, 215 (Fla. 2008). However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury. See Goodrich v. State, 854 So. 2d at 665; Hendrickson v. State, 851 So. 2d 808 (Fla. 2d DCA 2003). The trial court's limitation here amounted to just such an abuse of discretion.
Counsel’s right to address instructional issues was explained as follows: Defense counsel's argument concerning legal custody was permissible in this case because the jury was instructed to consider this issue. See Marman v. State, 814 So. 2d 1158, 1159 (Fla. 2d DCA 2002) ("If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter."); see also Seckington v. State, 424 So. 2d 194, 195 (Fla. 5th DCA 1983) ("Even though it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney to relate the applicable law to the facts of the case."); Taylor v. State, 330 So. 2d 91, 93 (Fla. 1st DCA 1976) ("An attorney should . . . be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of the jury charge that he feels to be pertinent."); United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996) (holding that counsel is permitted "point out legal concepts that will be included in the jury charge"), abrogation on other grounds recognized by Hunter v. United States, 559 F.3d 1188, 1190 (11th Cir. 2009), judgment vacated, 130 S. Ct. 1135, 175 L. Ed. 2d 967, 78 U.S. L. Weekly 3408 (Jan. 19, 2009).
Related Posts: Argument As Substitute For Instruction
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
Chapter 272: Summation/Closing Argument To Jury
272.3 - Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions
Forecite California™
PG X(G) - Effect of Argument on Instructional Error
