We have all heard the phrase “missing the forest for the trees.”  That tunnel vision is, sadly, predominant in trials – lawyers miss the big picture by focusing on only one aspect of an argument or objection; and judges, guided to the narrower perspective, almost always are then drawn away from the big picture.

This occurred in a trial as reported in a recent Pennsylvania Superior Court OPINION.  The tunnel vision view left in place an egregious misstatement of law – that a criminal defense attorney may be precluded from even mentioning the elements of the charged offenses during closing argument.  Here, verbatim, is what the OPINION related:

[T]he record belies Appellant’s claim that he was precluded from arguing self-defense to the jury. In his brief, Appellant contends that the following exchange reflects that the trial court prevented him from arguing self-defense:

In fact, the trial court cut off trial counsel during his closing argument when he mentioned reasonable doubt and then again when he asked for a clarification of the court’s ruling and whether he could at least discuss the elements of self-defense in his summation to the jury. Specifically, during the defense’s closing, the following discussion took place:

[Appellant’s Counsel]: …in order to find the Defendant guilty of this charge, you must find that the Commonwealth has proven beyond a reasonable doubt-

THE COURT: [Counsel], I will instruct the jury in the law, and I’ve made that clear.

[Appellant’s Counsel]: Can I go through the elements, Your Honor?

THE COURT: I will instruct the jury in the law. Continue. (T.T. at 244).

Appellant’s Brief at 18. We fail to see how this exchange prohibited Appellant from arguing self-defense in the closing argument. Rather, the trial court merely clarified that the court, not Appellant’s counsel, would instruct  the jury on the law. We conclude that Appellant’s claim of error is without merit.

So what is the forest in this small thicket of trees?  The trial lawyer, so focused on wanting to argue self-defense, did not realize that their own words never raised that defense but instead went to the prosecution burden of proof.  And the trial judge interposed a ruling that also never went to that issue.

But the tunnel vision is worse, and it is that of the appellate court.  Without discussion, it approved a trial judge’s ruling that a criminal defense lawyer may not even mention the elements of the charge(s) when challenging whether the prosecution has proved its case:

[Appellant’s Counsel]: Can I go through the elements, Your Honor?

THE COURT: I will instruct the jury in the law. Continue. (T.T. at 244).

This is remarkable.  Admittedly, an appellate court is tasked with addressing only preserved claims; but nothing would have prevented it from noting how wrong the trial judge’s directive was.

The Constitution says otherwise:

[Historically, whatever other procedural protections may have been lacking, there was no absence of debate on the factual and legal issues raised in a criminal case…

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.

Herring v. New York, 422 U.S. 853, 860-862, 95 S. Ct. 2550, 2554, 45 L. Ed. 2d 593, 599-600, 1975 U.S. LEXIS 84, *12-13

The lessons are simple.  Lawyers must preserve objections to the actual issue at hand; they ought not appeal a different issue from that preserved; trial judges may not preclude lawyers from mentioning the law; and appellate courts should never let such egregious misstatements of law go without comment.