The defendant writes a note, later introduced as evidence, in which he states he heard someone, who was present at the scene of a murder, scream. The prosecutor desires to make certain the jury remembers the note and what it means (i.e., that it effectively served as an admission of defendant's presence at the murder). But, his argument is intermixed with three rhetorical questions: "Do you still hear it Trent? Do you still hear her screaming? How do you know she screamed?". During this part of the argument, the prosecutor turns towards the defense table, points and steps towards the defendant, and raises his voice.

The court says the argument was incurable because "a rhetorical question can become a comment on a failure to testify when coupled with the lack of an explanation" that only the accused could supply. But, had not the evidence been supplied (in the form of the note)? This opinion misconstrues the argument, not to mention that the reason for a mistrial was never stated by defense counsel (something normally required to preserve an issue for appellate review). See Archie.

This type of final argument and the ensuing point of error pops up with some regularity, unfortunately.

For me, it is a matter of bad acting. The argument overplays the power of the piece of evidence, presenting the jury with the sort of drama usually reserved for afternoon soap operas.

A more effective approach is to present a scan of the piece of evidence through a projector onto a 12-foot tall screen, burning it into the memory of the jury. Trust them to incorporate it into their deliberations. Leave the jury something to talk about.