Thursday, February 18, 2010
3rd DCA ROUNDUP - CIVIL PROCEDURE EDITION
For perhaps the first and last time, we discuss an issue of civil (yuck) procedure.
Murray v. State. For all you civil commitment mavens out there be warned: to preserve a sufficiency of evidence argument on appeal not only must you make a timely motion for a directed verdict, but to preserve the issue you must also make a post verdict motion for entry of a judgment in accordance with the motion for directed verdict. Fla. R. Civ. Proc. 1.480(b). (This is the first and last time you will see us cite to a rule of civil procedure.
Query: What should a defense attorney be allowed to argue in closing? Well for starters, anything the jury is instructed on. Duh!.
Serge Jean v. State. Judge Areces catches a reversal for limiting the closing argument of the defense attorney. If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter. In this case in which the client was charged with escape, the defense attempted to argue the issue of lawful custody during closing argument. The court sustained an objection when the defense began to challenge whether or not the defendant was in lawful custody. However, the issue of lawful custody was explained to the jury in instructions. Counsel should be permitted to present all legitimate arguments. In so doing, the trial court must afford counsel wide latitude in presenting the closing argument. However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.