The last post finished up discussing when to raise evidentiary issues at trial. Today’s post covers when to object to improper jury arguments to raise the issue on appeal.
As with almost all challenges, the courts generally require a contemporaneous objection.To raise the issue on appeal, the party at trial must thus normally object to opposing counsel’s argument at the first opportunity. Webb v. CSX Transp., Inc., 364 S.C. 639, 657, 615 S.E.2d 440, 450 (2005).
There is, however, a narrow exception if the improper argument abuses a party or witness. In Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994), the Court reviewed a challenge in a case where the defendant was a regional distributor for Toyota, the Japanese automobile maker. During closing argument, counsel used posters depicting characters with Oriental features involved in bribery and document shredding. In an apparent reference to World War II, counsel also drew what looked like mushroom clouds from atomic bombs. The Court in Toyota held that the argument was “outrageous” for invoking such racial prejudice, and reversed absent a contemporaneous objection.
In Dial v. Niggel Assoc., Inc., 333 S.C. 253, 509 S.E.2d 269 (1999), the Court subsequently clarified and limited Toyota is two different ways. To avoid the contemporaneous objection rule,
• the improper argument must abuse a party or a witness
• the challenge must be made to the trial court in a post-trial motion.
Significantly, such abuse does not occur if the allegedly improper argument responds in kind to opposing counsel’s previous arguments. Dial, 333 S.C. at 258, 509 S.E.2d at 271.
Say there was a contemporaneous objection, the court sustains the objection, and the objecting party loses at trial. As with evidence, the objection and ruling does not by itself preserve the issue for appeal. The objecting party must ask for a curative instruction or a mistrial to later complain. McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 479 S.E.2d 67 (Ct.App. 1996).
On the other hand, it is not necessary to move for a mistrial if the objection is overruled. City of Columbia v. Myers, 278 S.C. 288, 294 S.E.2d 787 (1982).
Has anyone out there faced similar closing arguments? Caught opposing counsel’s failure to move for a mistrial? Please leave a reply or reach me at www.attorneyroberthill.com.