This argument about the husband's feelings after his death is in itself rather interesting. Does this part of the closing argument assume a fact not in evidence -- that dead people feel things after they're dead? (I assume that Montana law does not allow recovery for any such post-death pain and suffering.)
After an extended closing, Heidt's attorney began to "channel" a description of the death of Heidt's husband, using phrases such as: "Then, oh my God, I'm dying." He then began describing being autopsied, including a description of being cut open and of his sorrow at not getting to see his children grow up.
This got to be more than some could bear. One of the jurors announced that she was "not okay" and that she thought she was going to pass out.
Hence, although Plaintiff's counsel perhaps won a battle by "channeling," he lost the war at the trial: the jury returned a verdict for the defending doctor. But the determined counsel for plaintiff got the Montana Supreme Court to give his client a second bite at the apple.
The situations in [Campbell v. Fox, 113 Ill. 2d 354, 498 N.E.2d 1145, 101 Ill. Dec. 637 (Ill. 1986), [Reome v. Cortland Memorial Hospital, 152 A.D.2d 773, 543 N.Y.S.2d 552 (1989)] and in this case arose in a unique situation-a medical malpractice trial in which the jury gets to see the defendant doctor reacting to a real-life situation and apparently successfully delivering life-saving care. The effect of this on the jury is immeasurable, whether or not individual jurors admit it or even consciously know it. We agree with the courts in Campbell and Reome and their assessment of the substantial impact on the jury of observing the actual drama in the courtroom, when compared to listening to testimony describing past events during the trial itself.
Harman [plaintiff's counsel] said the closing argument was the first time he tried “channeling” the likely thoughts of a decedent, and he hasn’t had occasion to use the technique again. But that doesn’t mean he won’t.
“These types of arguments can be very effective,” he said. The only possible objection to a “channeling” argument, he learned in his legal research, is that it could inflame the passion and prejudice of the jury. “But in my opinion, that’s what good closing argument for a good trial lawyer is about,” Harman said.
Federal Rule of Evidence 403 states in part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"
Spindle Law's Evidence Module has material about the legal rules and principles governing closing arguments in trials.