Defendant is on the verge of pleading guilty after the jury has been selected. He then decides to reject the plea. The jury gets called into the courtroom and seated. After presentation of the indictment, the Court asks the defendant how he pleads.

He sits there. Saying nothing. Then he looks back at his family in the audience, shurgs his shoulders, and mouths at them, "what should I do"? Defendant starts to say something and judge calls us to the bench. After a brief conference, and then a brief chat between the attorney and defendant, the defendant enters a very faint not guilty plea.

Can I comment on this behavior in my closing?

I would stay as far away from that as possible. You'd be skating way too close to a comment on defendant's right to remain silent, as well as an improper comment on his not guilty plea, and you don't need to comment on it: the jury saw it themselves. If your facts aren't good enough without arguing that detail, it shouldn't be in court.

quote:

---

Originally posted by Gretchen:
you don't need to comment on it: the jury saw it themselves.

---

Ditto.

The defendant is going to testify. Change anything?

Don't comment on it. It is not in evidence. And it will present the issue of the defendant's failure to testify. Dangerous to imply evidence from mere courtroom behavior.

That would be a comment on non-testimonial courtroom demeanor. Generally improper because it is outside the record and because can impinge on the defendant's fifth amendment right not to testify. The classic error is "you saw no remorse from this defendant" while pointing at the defendant who did not testify or give a statement to the police.

If a defendant does something in the courtroom that you can properly use--lets say the old "finger pistol" at a witness form of a threat--get that into your record by calling a witness who saw it and then you could argue it in closing.

If he testifies then you can properly remind the jury that they are the judge of a witnesses credibility, and they can decide for themselves whether they believe him or not. I would keep that in general terms, avoid any mention of the defendants actions during plea, and let the jury remember what they saw on their own.