Character is Destiny: Improper Argument in State v. Anderson

Evidence of prior bad acts is admissible unless the only reason for introducing the evidence is to show the defendant’s propensity for committing the crime. In a trial involving a defendant’s sexual assault of children, the prosecutor told the jury, “[t]he best predictor of future behavior is past behavior.” Is that an inaccurate statement of law? The Court of Appeals recently held that it was. This post considers the rule – that incorrect statements of law in closing argument are improper – and its application in this case, State v. Anderson, No. COA23-821 (N.C. Ct. App. Aug 6, 2024). Permissible Argument The rules governing closing argument are derived from a variety of sources. By statute, “the whole case as well of law as of fact may be argued to the jury.” G.S. 7A-97. This grants counsel the right to argue the law to the jury. State v. Anthony, 354 N.C. 372, 430 (2001). By statute, by general rule of practice, and by rule of professional conduct, attorneys are exhorted to avoid abusive language, to eschew personal opinions, to confine their arguments to matters of record. See G.S. 15A-1230(a); N.C. Super. Ct. & Dist. Ct. R. 12; Rules of Prof’l Cond. 3.4. Many more of the rules governing the scope of permissible closing argument are scattered throughout the caselaw. One such rule is that “[t]he district attorney, in his argument to the jury, may not make erroneous statements of law[.]” State v. Harris, 290 N.C. 681, 695 (1976). The defendant in State [...]