THE OKLAHOMA BAR JOURNAL 36 | NOVEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Do not personally vouch for the credibility of any witness,27 as that is within the sole purview of the jury.28 Do not attempt to inflame the passions or prejudices of a juror (e.g., Lawton is “the crime capital of the world”29). Do not urge an irrelevant use of the evidence in matters, such as the “golden rule,”30 comment on broader social implications31 or tell the jurors to be the “community watchdogs.”32 Do not discuss the judicial process. (“Your [the jury’s] job is reviewable. They know it.”33) Prosecutors cannot comment, by both Oklahoma case law and statute,34 on a defendant’s silence at trial.35 Prosecutors, due to their “special responsibility,” have been more prone to committing misconduct in closing argument.36 As the U.S. Supreme Court has stated, “The function of the prosecutor ... is not to tack as many skins of victims as possible to the wall.”37 A prosecutor’s use of improper methods during closing argument can be grounds for reversal or mistrial where such remarks “so infect the trial with unfairness as to make the resulting conviction a denial of due process.”38 In Oklahoma criminal courts, it is rare for a case to be reversed, as opposed to remanded for a new trial, due to a prosecutor’s misconduct in closing argument.39 However, the U.S. Supreme Court took exception to how that standard was applied40 in a 2025 death penalty case when it revisited misconduct in closing argument. In that matter, Oklahoma County jurors heard the female defendant referred to by the prosecutor as a “hoochie” and a “slut puppy.”41 The prosecutor also held up a thong and lace bra in front of the jurors and declared that a “grieving widow doesn’t pack her thong underwear and run off with her boyfriend!” This was all used to convince the jury that this defendant should be executed for her husband’s murder. In a per curiam order, the U.S. Supreme Court found the prosecutor’s statements about the woman’s sex life and apparent “failings as a mother and wife” to be so prejudicial that they violated the due process clause and rendered the trial fundamentally unfair. Similarly, the Oklahoma Court of Criminal Appeals found that comparisons with other unrelated offenses that inject fear and passion into the proceedings are improper. One example is an assistant district attorney who compared the crime in the case with the infamous 1970s Sirloin Stockade murders in Oklahoma City during closing argument.42 In another example of impropriety, Oklahoma appellate courts have found reversible error when a prosecutor attempts to invoke the “golden rule” or argues the possibility that a defendant may commit future crimes.43 (“I would ask you to send a message to the defendant that enough is enough. This is the fourth time. And we are going to send a message to the defendant that it needs to stop.”)44 In another example, after a number of appeals involving alleged misconduct by the same Tulsa County prosecutor, the Oklahoma Court of Criminal Appeals pointed out, by name, a particular prosecutor who was “playing chicken” with both the trial and appellant courts after a series of cases in which “she also flouted the law and ignored the direct and explicit rulings of the trial court.”45 In another example, this time in Garvin County,46 the prosecutor’s closing argument continually referred to the defendant’s post-Miranda silence. In reversing and noting a prosecutor’s “duty was to seek justice and not merely to conviction,” the court found the defendant’s rights to due process were violated.47 Defense counsel in criminal matters are subject as well to the same closing argument strictures, but in addition, they can also be found ineffective in their representation in arguments.48 Under the standard of Strickland v. Washington,49 to show deficient performance, it must be shown that “counsel’s representation fell Counsel should be mindful to also avoid making legal arguments to a jury or to lose that connection by speaking ‘legalese’ to a jury.
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