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It is common practice for criminal lawyers to sit silently at counsel table during an opponent's closing argument. Some lawyers theorize that objecting during this critical stage of trial will alienate a jury or highlight prejudicial evidence. Other lawyers figure that most comments are permissible, and, therefore, there is really no basis to lodge an objection. See Bowles v. State, 737 N.E.2d 1150, 1154 (Ind. 2000) (finding no abuse of discretion when trial court permitted prosecutor to read a poem about a cockroach and analogize the cockroach to the defendant.) However, the recent case of Cooper v. State, 854 N.E.2d 831 (Ind. 2006) has reminded criminal lawyers that closing argument has boundaries. In Cooper, the Supreme Court reversed the defendant's sentence of life without parole because the "cumulative effect of the prosecutor's[improper] remarks hampered the jury's ability to decide dispassionately whether [the defendant] should receive a term of years rather than life without parole" Id. at 841. Cooper and other Indiana cases give us the following "rules" of closing argument:

Rule #1: A prosecutor cannot request a jury to convict a defendant or return a death penalty or life without parole recommendation based on the defendant's character. It is "misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt." [d. "[I]t is also misconduct for a prosecutor to request a jury . . . return a death penalty or life without parole recommendation for anything other than the mitigating factors are outweighed by the aggravating factor or factors." Id. at 841. In Cooper's penalty phase, the prosecutor said, "[Y]ou have got to look back over the last four days when you are judging that man's character." Id. at 839. The prosecutor also asked the jury to consider that the defendant "sponged off of women" and "was seeing three women at the same time." !d. at 839-40. The Supreme Court, fmding prosecutorial misconduct, concluded that the "[t]he unmistakable theme woven through the deputy prosecutor's rebuttal remarks was that Cooper deserved life without parole because he was an unsavory character." [d. at 841.

Rule #2: A lawyer should not imply that he or she has personal knowledge of the evidence or offer his or her personal opinion as to the credibility of a witness. Rule 304(e) of the Indiana Rules of Professional Conduct states that a "lawyer shall not ... assert personal knowledge of facts in issue .. . or state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused." Ind. Professional Conduct Rule 3A. However, this does not mean that a lawyer cannot comment on the credibility of a witness. In fact, a prosecutor "may comment on the credibility of the witnesses as long as the assertions are based on reaSons which arise from the evidence." Lopez v. State, 527 N.E.2d 1119, 1127 (Ind. 1988).

Rule #3: Litigants are entitled to respond to their opponents even if the response would otherwise be objectionable. During the course of the evidentiary portion of trial, a lawyer can'''open the door" to otherwise objectionable evidence. The same is true for closing argument. The Supreme Court has held that "[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable." Cooper, 854N.E.2d at 835. In the rebuttal phase of closing argument, the Cooper prosecutor told the jury, "Now, I'll admit [the defendant is] probably one of the finest liars that I've ever heard testify in the courtroom but he's a liar nonetheless." [d. at 836. Normally, these comments would be improper. However, these comments responded to defense counsel's claim that the defendant was credible. Because the defendant's testimony was inconsistent with his prior statements and the physical evidence introduced at trial, "the prosecutor was permitted to argue to the jury that Cooper was not offering truthful testimony." [d. at 837; Rule #4: A Failure to Object May Result in Waiver. Finally, one of the most important lessons from Cooper is that the failure to object to improper closing arguments may result in waiver.· Although Cooper prevailed on appeal, he was only able to do so by utilizing the fundamental error doctrine. Usually, the party must request the jury to be admonished and if the admonishment is insufficient, move for a mistrial. "Failure to request an admonishment or to move for mistrial results in waiver." Id. at 835.