By: Jonathan M. Oostra

In a civil setting, hypothetical questions are frequently utilized. It is permissible to ask questions regarding familiarity with the scene of an accident and general questions regarding a road condition which may cause an accident.⁵ Hypothetical questions may also be allowed in certain circumstances to explain the applicable law or to determine the ability of the jurors to follow the law.⁶ The questions can become improper when they focus on the specific factual issues of the case.

Improper attempts to influence the jurors may arise in other circumstances. Objections are generally proper to material which could have the effect of creating bias in a juror. One example of prejudicial material is the attempted use of newspaper articles to determine public hostility within the jury pool.⁷ Other improper attempts to influence the jury can include reference to liability insurance of the defendant if it would prejudice the case⁸ as well as references to the credibility of evidence and witnesses.⁹

Depending on the facts surrounding a case, inquiries into certain personal beliefs may be inappropriate. Ordinarily, questions concerning political or religious beliefs are irrelevant unless they are necessary to determine potential prejudice.¹⁰

While some latitude is given the attorneys during opening statement,¹¹ even more freedom is allowed in closing argument. In his Trial Objections Handbook, Professor Park provides several principles to follow in determining whether a comment is properly objectionable. The first principle is the basic premise that comments made by attorneys should not be considered evidence; the second principle concerns the goal of having the decision made by the jury in a dispassionate and fair manner; the final two principles focus on considerations of extrinsic policy and rules concerning comments which are considered too "argumentative" in opening statement.¹² These categories may be useful to remember as a frame of reference encompassing the field of proper objections.

The primary example of the first principle is the prohibition of the use of personal opinion of the attorney during opening statement or closing argument.¹³ The South Dakota Rules of Professional Conduct prohibit a lawyer from stating personal opinions as to the justness of a cause, asserting personal knowledge of facts in issue, the credibility of witnesses, and the culpability of a civil litigant or the guilt or innocence of the accused.¹⁴ The prohibitions within the rule relate directly to personal opinions of the attorney and fall within the first principle. The primary question in determining if a personal opinion is being improperly injected is whether the language is used in an attempt to get the fact finder to rely on the attorney’s credibility.¹⁵ The credibility of the attorney is not relevant to the issues of the case. In his first principle Professor Park also includes objections to facts which are not in evidence but may be known by the attorney, and to misstatements of the evidence.¹⁶

The adversarial system requires a decision by a fair and dispassionate jury. This second principle necessarily includes objections to comments designed to get the jury predisposed in favor of a particular party. A common example of this category of objectionable material is derogatory personal remarks directed to the opposing counsel.¹⁷ Objectionable comments directed at the opposing party which could create bias in a jury include improper reference to classes of individuals based on race, religious affiliation, sexual orientation, etc.¹⁸

Other notable examples of objectionable material possibly falling within the second category include referencing the poverty or wealth of a party, referring to insurance or settlement negotiations, or comments discussing material beyond the record.²² Attempting to tell the jurors that one party offered to settle the dispute or that the defendant has a sizable insurance policy may predispose the jury to return a verdict against that particular party.

The third principle is based on matters of extrinsic policy and has constitutional considerations. In a criminal case, it is well settled that it is reversible error for the prosecutor to call attention to the failure of the defendant to testify.²³

The final principle applies primarily to the opening statement. The purpose of the opening statement is to briefly state the issues involved and familiarize the judge and jury with the nature of the case and the evidence to be produced.²⁴ Arguments during the opening statement are expressly prohibited by SDCL 15-14-1(2). Associated with the rule against argument in opening statement is a general prohibition against reading the pleadings or mentioning inadmissible facts.²⁵

A trial attorney should also be aware of the "invited response" doctrine. This doctrine would allow an otherwise off-limit closing argument in light of opposing counsel’s comments which would invite such a response.²⁶ Reliance on the doctrine may not be prudent since it is within the discretion of the judge whether to allow the "invited response".

Finally, it should be noted the decision not to object (or a simply failing to object) to an improper action constitutes a waiver, foreclosing relief on appeal. ²⁷ If an objection is timely made, a curative instruction may be given by the trial court. Further, under South Dakota law a transcription of voir dire, opening statement, or closing argument is not required.²⁸ If an objection is presented and overturned during these phases of the trial, care should be taken to document the fact that the objection was denied for appellate purposes.

Strategy certainly plays an important part in the decision as to whether to raise objections during voir dire, opening statement, or closing argument. Knowledge of the correct response to an improper comment will enhance the litigation skill of the attorney in these important facets of the trial.