Whether the Prosecution Must Unilaterally "Disarm" During "Rhetorical Battle" With the Defense

I was intrigued by Westlaw's "Headnote of the Day," which states:

When entering rhetorical battle with defense counsel during closing argument, nothing requires the government to disarm unilaterally. 

United States v. Pirro, 9 F. App’x 45 (2d Cir. 2001)

I decided to look a little more into the context of this headnote. In Pirro, the defendant argued that he was denied a fair trial because the prosecutor acted improperly during closing arguments. The prosecutor argued that the defendant's arguments were "implausible and contrary to common experience," said that the defendants were "crooks," and sarcastically disparaged some of the inferences that the defendant asked the jury to draw.

The Second Circuit Court of Appeals noted that very little discussion on these points was required because (as the headnote states above), the government was not required to "disarm unilaterally" in rhetorical battle with the defense. The Second Circuit cases the court cited in support of its conclusion, U.S. v. Rivera and U.S. v. Wilner, clarify that the prosecutor is not foreclosed from being a strong advocate during closing arguments. The court in Wilner employed some rhetorical flair of its own in making this point:

A prosecuting attorney is not an automaton whose role on summation is limited to parroting facts already before the jury. He is an advocate who is expected to prosecute diligently and vigorously, albeit without appeal to prejudice or passion. His task is not rendered easy by the “no holds barred” tactics indulged in by all too many defense counsel in recent years.

I think that this is a good approach for courts to take, since the purpose of closing argument is not only to summarize the facts, but to apply them in a compelling manner. Without leeway to criticize the other side, and employ occasional sarcastic disparagement or colorful language, the prosecutor's closing would be reduced to a dull, unmemorable series of factual reiterations.

Of course, the right to a fair trial may be harmed if the prosecutor strays too far into inflammatory language, or if the prosecutor injects his or her own credibility determinations into the argument. And putting the right to a fair trial to the side for a moment, a prosecutor should probably avoid being overly sarcastic or condescending towards the defense, since this could come across as condescending and alienate the jury.

The lesson from Pirro and the cases it cites (which are probably more noteworthy, since they are published), is that a prosecutor can be a vigorous advocate without infringing the defendant's right to a fair trial. But prosecutors should take care that their arguments don't veer into unfair territory where constitutional violations or alienation of the jury may occur.