In jury trials, the lawyers are generally allowed wide latitude in what they can say to the jury in their closing arguments. They are allowed to discuss the evidence at trial and reasonable inferences they think the jury should draw from the evidence. Whether a lawyer has crossed a line into mere speculation in a criminal case was addressed by Maryland’s intermediate appellate court in a recent opinion in a case called Dimas Osorio-Vasquez v. State of Maryland.

The opinion indicates that the victim was a part time security guard at a bar frequented by the defendant. One evening the defendant and a friend came to the bar, and later got in an argument with the victim and left the establishment. Sometime later the defendant’s friend returned to the bar, along with a man with a shotgun who shot the victim in the arm. The victim initially told the police he did not see the shooter and it all happened really fast, but at trial he said the shooter was partially wearing a mask but he still could identify the defendant as the perpetrator.

The shooting was captured on video which was played for the jury, which included an unidentified female witness to the shooting. The police testified that there were two witnesses who were shown arrays of photographs, including one of the defendant, but were unable to pick his photo out of the array. One of these witnesses, the police testified, refused to cooperate. The defense attorney in closing argument highlighted that the witness could not identify a photograph of the defendant.

The prosecutor in rebuttal argument then said, over objection, that the witness may not have wanted to cooperate because “if the defendant is willing to come back to a club over a petty argument and shoot you with a shotgun, what do you think he is going to do to someone who cooperates.” There was no evidence that the witness was in fear of retaliation, or any other explanation for her failure to cooperate with the police.

The appellate Court found that this was improper argument based on mere speculation, and it was an abuse of the trial judge’s discretion to allow the argument. The case was therefore reversed for a new trial. This illustrates the limits courts place, at least in criminal cases, of a lawyer’s speculative argument to the jury.


Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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