The closing argument is the last opportunity in a trial for the defense lawyer to speak to the judge or jury before they begin deliberations. The defense’s closing argument generally takes place between the prosecution's closing argument and the prosecution's closing rebuttal argument. The purpose of the closing argument is to summarize the defense’s case – explaining the significance of the evidence, presenting a positive theory, engaging the judge and jurors intellectually and emotionally, and explaining why the defendant is innocent. The defense should also point out the bias and inconsistencies in the prosecution’s case. No new information should be introduced in the closing argument.
The closing argument is very similar to the opening statement, except that the closing argument focuses on the concrete facts presented at trial. Therefore, the closing argument should complement the opening statement, continuing to evoke the defendant's theory of the case.
Structuring the Argument
In structuring the closing argument, it is important to:
- Use a simple, logical structure that repeats the theme introduced in the opening statement;
- Build on that theme while refuting the prosecution's witnesses and conclusions;
- Answer the questions you think the judge or jury might be asking themselves;
- Introduce each new point with clear transitions;
- Appeal to the judge or jury's emotions;
- Use logic to offer explanations that are more favorable to your client or to discount the prosecution's conclusions;
- Build to a strong conclusion.
Goals and Techniques
The goal of the defense lawyer's closing argument is to tie together the defense's evidence in a strong and persuasive manner for the judge or jury. During closing arguments, the defense lawyer should:
- Humanize the defendant: use the defendant's name, share positive facts about his/her life, help the judge or jury connect with the defendant;
- Discuss the relevant law to the defendant's best advantage in clear, concise language that the jury can understand;
- Listen carefully to the prosecution's statements and witnesses in order to exploit any weaknesses;
- Address and refute each of the prosecution's claims against the defendant;
- Close with a strong repetition of the key theme and a request to the judge or jury for a verdict of not guilty.
The prosecutor will listen closely to the defense's argument in order to reply in the rebuttal. But don't waste too much time anticipating their final arguments, simply concentrate on making the defense's closing argument strong.
Delivering the Closing Argument
Prepare the closing argument early, anticipating the evidence, witnesses, and issues likely to arise during trial. However, the closing argument won’t be finalized until all the evidence is delivered and the prosecution has given their closing argument. So the amount of emphasis placed on certain evidence may change depending on the trial. Nonetheless, there are simple techniques that should always be followed when delivering the closing argument:
- Speak clearly and use vocabulary that your audience is familiar with;
- Speak at a reasonable tempo and at a reasonable volume;
- Be aware of your body language: facial expressions, eye contact, physical distance from your audience, etc;
- Avoid making distracting movements: pacing, fidgeting, etc;
- Try to avoid using unnecessary filler words: if you forget your argument, pause for a second to reorganize your thoughts;
- Connect with the judge or jury: address them directly in the closing, show deference, emphasize their power and responsibility;
- Prepare and memorize as much of the closing argument as is practical in advance, given the likelihood of adding new facts.
Sample Themes for a Defense Lawyer's Closing Argument
Themes are ways of neatly connecting the defense's arguments throughout the case. A good theme can persuade a judge or jury or aid in recall of key facts. Focus on finding a short, memorable phrase that encompasses the central emotion or theory of the case which can be referred to throughout the trial. Several common themes are:
The prosecution's heavy burden of proof
If your jurisdiction places the burden of proof on the prosecution, then emphasizing this heavy burden is a powerful theme. A jury may be wavering on whether a defendant is guilty or not, but if they realize that they only need a reasonable doubt, they are more likely to side on not guilty.
- The test is not which side you believe - The prosecution may suggest to you that the test in this case is simply which side you believe. They invariably do this - and it is wrong. That's not the test. The test is this: "Do you have a reasonable doubt whether the defendant is guilty of the crime they've alleged?" Is there at least one reasonable doubt that (name the defendant) might be wrongly accused?
- Reasonable doubt as an abiding conviction of the truth of the allegation - Reasonable doubt is not a mere possible doubt. We know as a matter of human experience that everything relating to human affairs is open to some possible doubt or some sort of imaginary doubt. I suggest to you that reasonable doubt about a person's guilt is when, after considering and comparing and weighing all the evidence, you are not left with an abiding conviction of the truth of the charge that has been leveled at the accused.
- Reasonable doubt as meaning at least "firmly convinced" of guilt - Whatever you may think about what reasonable doubt means, I submit to you that it means, at least, that you, as a responsible juror, cannot convict a person of a crime until you are firmly convinced, personally, of the defendant's guilt.
- Evidence must leave no room for reasonable doubt - By your oath, you cannot convict the defendant when after careful consideration of the evidence there still remains one reasonable doubt as to whether the accused is guilty of this charge. It is only when the evidence leaves no room whatsoever for reasonable doubt that you are allowed to find that the accused is blameworthy.
- Reasonable doubt known by heart and by gut - You will know reasonable doubt, not only by reason but also by your heart and by your gut. It's not just a legal concept. It's also a feeling, an intuition.
If, like in Singapore, there are cases where the burden of proof shifts to the defendant, then this is not a particularly good theme to emphasize.
Discrediting co-defendants and other witnesses with criminal records
Many criminal cases are built on the testimony of cooperating co-defendants or people with prior criminal records. Using this issue as a theme allows the defense to more easily discredit such informants and cooperating coconspirators.
- Be skeptical from the beginning of the case - I told you in my opening statement, at the very beginning of this case, that you were going to hear from some biased people, and, without exception, the record reflects either that every one of them had made some kind of deal or that every one of them had a reason to say what he said. I asked you to please be skeptical and to listen not only to what they said, but to the way they said it and how they said it and why they said it. I asked you to keep your mind open to that because you don't have to accept at face value what they said. That's your prerogative as a juror. You're free to call into question the tactics used by the prosecution.
- Credibility of prosecution witnesses - The test of believability doesn't rest on anyone but the prosecution. They must prove that what (name the informant or cooperating co-conspirator) told you was true beyond any reasonable doubt. They can't shift the burden of proving the honesty of their witness by saying, "Well, what kind of witness would you expect us to have?"
- Prosecution vouching for credibility and truthfulness of accomplice or coconspirator witness - How can you believe someone like (name the accomplice/coconspirator)? This is such a topsy-turvy sort of case. I really marvel at it because here we have the government, through its prosecutor, vouching for the credibility and truthfulness of an admitted criminal.
- Witness stand in this case became a shady place for shady characters -During the prosecution's case, this witness stand (indicating by pointing at the stand) was a shady place for some very shady characters.
- Informant's first career as a criminal transformed into second career as professional witness - (Name the informant) made a career out of petty and violent crime. Now he's making a second career out of being a government informant witness.
Power of the Judge or Jury
It is also persuasive to emphasize for the judge or jury the importance of the role they fulfill in the system. Flattery is a quick way to win votes to your side.
- Lead in to discussing the role and duty of jurors and the importance of their decision-making power - The judge told you at the beginning of the case that you should not be offended if the attorneys do not speak to you as you come and go. The law prevents me from speaking with you outside the courtroom. I hope you understand that's why we have had to remain aloof. If we have passed in the hallways or if we shared an elevator and I seemed to avoid recognizing you, it's because the law requires it, not because I enjoy it. There was never any disrespect intended. Indeed, now that we are at a point in this trial when I can speak directly to you, I would like to say a few things about how important you are and the sense of pride, power and obligation you should feel in doing your job as a juror.
- Lead for discussion of purpose, power, and obligation entailed in being a juror - Soon, you ladies and gentlemen will go into the jury room to decide whether or not the evidence has removed each and every reasonable doubt about whether (name the defendant) did what the prosecutor claims. I wish I could be there with you when you go over the facts of this case. But before I discuss the evidence, I want to take just a moment and visit with you he about your purpose as jurors, the power that you have, and the obligation that being a juror carries with it.
- Trial by jury valued - It is good that we have trial by jury. We don't have trial by commission or trial by police officer. We have trial by jury, by citizens.
For examples of real closing arguments, see Sample Closing Arguments Transcripts
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