Permissible Closing Argument in Maryland

In Smith & Mack v. State, 388 Md. 468, 486-88, 880 A.2d 288 (2005), the Court set forth the accepted principles and concepts of closing argument in criminal prosecutions. "It is well settled that a criminal defendant's Sixth Amendment right to counsel guarantees, in part, an opportunity for counsel to present closing argument at the close of the evidence." Holmes v. State, 333 Md. 652, 658-59, 637 A.2d 113 (1994) citing cases. The United States Supreme Court in Herring v. New York, 422 U.S. 853 (1975), discussed the importance of closing arguments: It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of the case will best promote the ultimate objective that the guilty be convicted and the innocent go free. (Id. at 862.) In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), this Court discussed the scope of permissible closing argument: As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range. Counsel is free to use the testimony more favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way.... Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments, as is accused's counsel to comment on the nature of the evidence and the character of witnesses which the prosecution produces. (Id. at 412-13.) Judge O'Donnell continued to explain: While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments to opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast limitations within which the argument of earnest counsel must be confined - no well-defined bounds beyond which the eloquence of an advocate shall not soar. Counsel may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. Counsel may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions. Id. at 412-13. We also have held that in closing argument "jurors may be reminded of what everyone else knows, and they may act upon and take notice of those facts which are of such general notoriety as to be matters of common knowledge." Wilhelm, 272 Md. at 438. Thus, during closing argument, counsel may "state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence," Henry v. State, 324 Md. 204, 230, 596 A.2d 1024 (1991), in addition to argue matters of common knowledge, see Wilhelm, 272 Md. at 438. "Subject to the trial court's discretion, both the State's Attorney and defense counsel are given wide latitude in the conduct of closing argument, including the right to explain or to attack all evidence in the case." Trimble v. State, 300 Md. 387, 405, 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230 (1985). Closing argument, however, is not without limitation, in that the court should not permit counsel to state and comment upon facts not in evidence or to state what he or she would have proven. Wilhelm, 272 Md. at 414-15. What exceeds the limits of permissible comment or argument by counsel depends on the facts of each case.