Can You Invoke God in a Closing?
While some aspects of our society are extremely secular, there is no shortage of prayer in America. The United States House of Representatives has begun each legislative session with a prayer since it first met in 1789. The Supreme Court ruled in 2022 that a high school football coach had a constitutional right to pray on the field after games. While church attendance has dropped substantially over the past several decades, over 70% of Americans still describe religion as “important” to their life. [1]
As such, nobody will think twice if you privately pray for victory prior to delivering a closing statement. But can you go further? Can you suggest that God is on your side during a closing?
As always, it is important to distinguish between what courts say and what they actually do. You’re unlikely to find a court willing to write that appealing to religious authority is totally fair game in closing argument. When the question is put to them, judges are much more likely to write things like “courts have universally condemned religiously charged arguments as confusing, unnecessary, and inflammatory.” [2] And on some level that’s true. But while courts “universally” talk a good game about keeping God out of closing statements, in decision after decision you will find examples of appeals to religious authority being made in closing argument and little or nothing being done about it.
Let’s start with the small stuff – peppering a closing argument with religiously slanted turns of phrase in as a way of subtly alluding to religious themes or indicating to believers on the jury that you’re a “member of the club.” A scrupulously secular judiciary might prohibit this but, by and large, American courts do not.
For example, in Sechrest v. Baker, [3] a prosecutor made the following comments in closing argument:
- “It is kind of an interesting, interesting piece of legislation, interesting law we have. Thank the good Lord we have it when children are involved.”
- “And then finally when the police—by God, as I said in the opening statement, they worked around the clock that task force....”
- “As I said before, you know, in the good book somewhere in that Bible it says—I wish I had read it more—somewhere it says out of the mouths of babes. Out of the mouths of babes.”
On habeas review, a federal district court dismissed the defendant’s complaints, claiming that these were merely “figures of speech” that “carried little religious meaning.” [4] A similar result was reached in Elliot v. Wetzel, where a prosecutor referred to his argument as “a benediction for all the evil that we have been confronted with in this case” and closed his comments by stating “God Bless You.” [5]
Let’s go a bit further. What about stories from the scripture designed to illustrate whatever “moral point” is being made in closing? These are also widely tolerated. Consider Jackson v. Epps, [6] where a district court in Mississippi upheld the following statement by a prosecutor in closing:
[T]he first thing that came to my mind was a bible story that I had heard. The Bible story that we liked as a child and for the life of me, I can't think why we ever liked it. It was in the book, the Story of Jesus. The name of the story was the Wrath of Herod. Herod was the king. He was a jealous king. His wrath, you know about it. When he heard about the Baby Jesus, that one day he would grow up and rule Judea and, it said he decided that he must be done away with. That Herod didn't know which of the babies in Bethlehem would be this king. He decided that every children two years old and younger would be put to death. This is his law because he was the King. Every child two years old or younger was torn from his mother's arms and murdered. This terrible crime is known in history as the slaughter of the innocent because the babies were so young and they were still innocent of all the evil in the world and did not know the wickedness was the cause of their deaths. But, the mothers knew. Loud lamentation and weeping and deep mourning filled the little village of Bethlehem. Not long after King Herod had issued this terrible command and committed this horror that punished Bethlehem, that cruel monarch died afflicted with a loathsome disease. Herod died in great pain. His death was a just end in a life of brutality and wickedness.
* * *
Ladies and gentlemen, God's law in the beginning was, if you commit a willful murder, you should be put to death. And, that really hasn't changed over the years except that now we require something else .... [a]nd, one of those things the legislature said justified death is the slaughter of the innocent.
On review the court found these “statements were more akin to familiar Proverbs and parables that are used to support arguments outside of a religious context” and thereby not improper. [7] A similar result was reached in Millender v. Johnson, where statements comparing the defendant to the biblical Cain, were held merely “a dramatic illustration” and not improper. [8]
Let’s go even further. Can you call the defendant a “disciple of Satan?” Sure, why not. In People v. Harrison, [9] the California Supreme Court upheld a closing argument that was practically smoldering with fire and brimstone. The prosecutor began by stating that while he was “not a religious person,” what he had read in the Bible about the “apocalypse” put “defendant’s conduct into perspective.” He then said:
On what steed, with whose authority does [defendant] cut a path through the City of Oakland leaving murder and death and destruction and utter annihilation in his wake? By what authority is he guided? This man is the disciple of Satan, ladies and gentlemen. He has worked his way up into this community from the deep inner core of this planet like a sour foul putrid weed. He has cracked the soil and killed all before him so he can live, and when the sun goes down he comes out and he slaughters and he maims and he murders. But, ... he's not the judge and jury in this case, you are, and that's where he comes up short. The man is the utter harbinger of senseless total annihilation, no more, no less. You must take the sword from him and cast it down and tell him that he was wrong and he may go no further.
On review, the California Supreme Court ok’d this closing, claiming that the Bible is “generally regarded as a literary masterpiece” and that as such attorneys “may refer to the Bible in closing argument to illustrate a point.” [10]
So, is there a line? Sometimes an attorney will go so far that even normally deferential courts feel the need to do something. In Sandoval v. Calderon, [11] the Ninth Circuit examined a trial where a prosecutor said the following in closing, largely paraphrasing Romans 13:1-5:
Death is a legitimate means of punishment in this state. It's available in this state. You are called upon to impose it if you think it's appropriate.
* * *
[Defense counsel] says don't play God. Let every person be in subjection to the governing authorities for there is no authority except from God and those which are established by God. Therefore, he who resists authority has opposed the ordinance of God, and they who have opposed will receive condemnations upon themselves for rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good and you will have praise for the same for it is a minister of God to you for good. But if you do what is evil, be afraid for it does not bear the sword for nothing for it is a minister of God an avenger who brings wrath upon one who practices evil.
You are not playing God. You are doing what God says. This might be the only opportunity to wake him up. God will destroy the body to save the soul. Make him get himself right.
On habeas review, the Ninth Circuit held that this was across the line. In particular, the Court was concerned that this argument was an “invocation of higher law or extra-judicial authority” that differed from the legal rules the jury was instructed to apply and delegate[s] the ultimate responsibility for imposing a sentence to divine authority [and] undermines the jury's role in the sentencing process.” [12] It was also not terribly thrilled by the argument that “destroying [defendant’s] mortal body might be the only way to save [defendant]'s eternal soul.” [13]
A similar result was reached by the Pennsylvania Supreme Court in Com. v. Chambers. [14] There a prosecutor arguing for the death penalty made things real simple for the jury:
Karl Chambers has taken a life. As the Bible says, and the murderer shall be put to death.
Like the Ninth Circuit, the Pennsylvania Supreme Court blanched at the suggestion that the jury should consider religious law, rather than the law instructed by the court, in reaching its verdict:
By arguing that the Bible dogmatically commands that “the murderer shall be put to death,” the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty. [15]
And, in perhaps the most extreme example, in Cauthern v. Colson [16] the Sixth Circuit reversed a conviction where the prosecutor went beyond calling the defendant a mere “disciple of Satan” and instead claimed that the defendant was – in fact – the devil in human form. Lest you think I’m exaggerating, here’s what the prosecutor said verbatim:
The evil one is smart, the evil one is skilled, the evil one is wily, and the evil one is manipulative. A simple little demonstration of that, ladies and gentleman, is this. The evil one appeared today and produced greeting cards—“Merry Christmas,” “Happy Holidays.” But on January the 8th, 1987, the evil one appeared at the door of 351 Hampshire Drive, a home not unlike yours in a neighborhood not unlike yours—the evil one appeared there in disguise—a mask, a black jacket, a pistol, strangling rope, and the evil one is capable of taking advantage of what was available inside their house.
Yes, whether you like it or not—whether you volunteered or not, you are engaged in the ultimate battle in everyday combat with the evil one, and he's not going to go away. He appeared in Minnesota in the form of Jeffrey Dahmer. He appeared in Union, South Carolina, and on January the 9th, he appeared at the door of Patrick and Rosemary Smith. You cannot negotiate with the evil one, ladies and gentlemen. You cannot deal in good faith with the evil one. You have got to destroy and destroy, or he and his benefactors will destroy you. He'll destroy us. He'll destroy our children.
The evil one took the name of Ronnie Cauthern on that day. That was his name, and he's beyond redemption. He's beyond redemption. There is no treatment for this individual posing in a mask and taking human form. There is no treatment for this person. This person has been around through all ages and will appear again. You cannot cure him. Don't try to save him. Engage him in combat and destroy him. Do your duty. [17]
So, what lessons can we take from this?
First, I’m certainly not suggesting that you take any of this as license to preach to the jury like a substitute pastor. Even if there are courts where you can get away with it, there are plenty of judges and juries – both secular and devout – who will react badly to attempts to claim that God is on your side. While you shouldn’t categorically rule out scripture as a powerful source of stories and themes to draw from, you should think hard and consult with knowledgeable local counsel and/or jury consultants before you elect to go in that direction.
Second, you should be aware that religious appeals can be made by either side in a case and that while you might get a curative instruction, you cannot count on getting a mistrial unless opposing counsel truly steps through the looking glass. When thinking about how the other side is likely to present its argument, do not rule out religious themes and think carefully about how you might address and/or turn them to your advantage if opposing counsel do go in that direction.
Third, if you think that the other side might appeal to religious authority or otherwise lean on the Bible in a way that is harmful to your case, consider a motion in limine to exclude such arguments. For example, in Whitfield v. Harris, [18] defense counsel faced an extremely capable plaintiff’s lawyer who was known to appeal to religious authority in arguments, even calling defendants and/or their behavior “un-Christian.” In light of this, the district court entered an order stating:
it is prohibited for any counsel to mention or refer to any deity or make any religious reference in such a manner as can reasonably be construed to indicate that the jury should consider the teachings or beliefs of the deity or any religious references in addition to or to the exclusion of the law. Counsel are further prohibited from making any reference to the religious beliefs or affiliations of any party or counsel in such a manner as can reasonably be construed to indicate that the jury should consider the religious beliefs or affiliations of the party, unless such matters are probative of an issue raised at trial.
While this alone does not prohibit all forms of potential mischief, putting the judge on notice in advance maximizes the chances that you prevent prejudicial statements before they happen.
[1] See https://news.gallup.com/poll/358364/religious-americans.aspx .
[2] Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir. 1996) (cleaned up) (holding religiously charged comments were nevertheless harmless error.
[3] 816 F.Supp.2d 1017 (D. Nev. 2011).
[4] Id. at 1055.
[5] 2020 WL 8919201, at *18 (E.D. Pa. 2020).
[6] 2010 WL 3853158 (N.D. Miss. 2010).
[7] Id. at * 29.
[8] 2020 WL 1331053, at *21 (C.D. Cal. 2020).
[9] 35 Cal. 4th 208 (2005).
[10] Id. at 248.
[11] 241 F.3d 765, 776 (9th Cir. 2000).
[12] Id. at 777.
[13] Id. at 776.
[14] 528 Pa. 558 (1991).
[15] Id. at 585.
[16] 736 F.3d 465 (6th Cir. 2013).
[17] Id. at 474-475.
[18] 474 F.Supp.2d 822 (N.D. Miss. 2007).
