Closing argument is the last opportunity in a trial for the defense lawyer to speak to the jury before the jury begins deliberations. The defense lawyer's closing argument generally takes place between the prosecution's closing argument and the prosecution's closing rebuttal argument. If the defendant puts on no affirmative evidence, sometimes the prosecution is not allowed to give a rebutted closing argument. Having the last opportunity to speak to the jury can be an important factor in deciding whether to present any witnesses.
Structuring the Argument
In structuring the closing argument, it is important to:
- Have a logical, simple structure that repeats the theme introduced in the opening;
- Build on that theme in refuting the prosecution's witnesses and claims;
- Answer questions you think the jurors may be asking themselves;
- Headline each key point you want the jury to remember by introducing each new point with clear transitions;
- Build to a strong conclusion.
Goals and Techniques
The goal of the defense lawyer's closing argument is to tie together the evidentiary pieces of the defense in a strong and persuasive manner for the jury. During closing arguments, the defense lawyer should:
- Discuss the law relevant to each of the defenses raised throughout the course of the trial;
- Address and refute each of the prosecutor's claims against the defendant and exploit any weaknesses in the prosecution's case;
- Remind the jury of the prosecution's witnesses called at trial and attack their credibility;
- Discuss the key jury instructions in layman's terms and remind the jury of the prosecution's burden of proof in the case;
- Discuss the fact that in our justice system the defendant is entitled to the presumption of innocence and the burden of proof rests entirely on the prosecution;
- Remind the jury that they cannot convict the defendant unless the prosecution has proved beyond a reasonable doubt that the defendant is guilty as charged.
- The defense lawyer's argument should close with a strong repetition of the key theme and a request to the jury for a verdict of acquittal.
The prosecutor will listen closely to the defense argument because in most cases he will have the opportunity to reply to the defense argument.
Sample Themes for a Defense Lawyer's Closing Argument
One important theme in any closing argument is the prosecution's heavy burden of proof. Some ways of emphasizing that burden are as follows:
- 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.
Many criminal cases are built on the testimony of either cooperating co-defendants or persons who themselves have prior criminal records. This is also an important theme to emphasize. Some samples of defense jury argument discrediting informants and cooperating coconspirators are as follows:
- 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.
It is also important to emphasize for the jury the important role it fulfills in the system. Some possible ways to make this point are as follows:
- 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.