Tanenbaum Keale LLP associate Timothy Freeman recently authored a Law360 Expert Analysis article focused on key considerations for attorneys when deciding whether or not to raise objections during opening and closing statements. He specifically highlighted a recent decision from the Missouri Court of Appeals where the court held that a criminal defendant was not denied effective assistance of counsel because his attorney did not object to improper comments during a closing statement.

Instead, the court ruled that it may be an effective litigation strategy to refrain from objecting to improper statements because objections may irritate the jury and serve to highlight and draw attention to such statements when an attorney and client might want the jury to disregard them.

“Such considerations must be balanced against the potential for waiver of objections if they are not raised contemporaneously in relation to the improper statements or comments,” Freeman wrote. “This article attempts to explore the dilemma of whether and how to object during opening and closing statements and offer some thoughts on how to handle this issue in a proactive manner.”

Freeman concludes that these decisions remain “more of an art than a science.”

“… (O)bjections should be placed on the record if there is a chance that an appellate issue may be present,” he wrote. “However, if objections are reserved until the conclusion of the opening or closing statement, it can provide additional time for contemplation as to whether an objection is warranted. In addition, raising objections after the opening or closing statement outside the presence of the jury avoids irritating the jury and highlighting the objectionable statement or comment. Of course, if the statement is highly inflammatory, it may be necessary to stop it immediately before it infects the jury’s deliberations. In many cases, the best strategy may be to attempt to reach an agreement to reserve all objections until after the opening or closing statement, while also reserving the right to object immediately if the circumstances demand it.”

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