Guide to Effective Advocacy in the Cambodian Criminal Justice System - Closing Arguments

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Closing Arguments

The closing argument provides the advocate the opportunity to finally argue their case to the fact finder. The closing argument is not a summation of the facts. It is an argument used to convince the fact finder that the advocate’s case is the true and correct one.

An effective argument takes the theory of the case, the evidence, and the law and molds them together into a persuasive whole. A successful argument makes the judges do what the advocate wants them to do and feel good about it.

The closing argument should be efficient. Again, remember that most people can maintain a high level of concentration for only a short period of time. An effective closing argument should focus on the main themes and key pieces of evidence. It should not overwhelm the judges with details. Most closing arguments should not be more than 15-30 minutes in length.

General Considerations

While there are an infinite number of ways to create and present a convincing closing argument, there are some basic strategic devices that should be considered in every case. These devices include:

Arguing the theory of the case. The theory of the case that was presented during the opening statement should remain the center of the advocate’s case. It should be stated clearly in closing. It should be repeated.

Arguing the facts. Argue the facts by carefully choosing the facts that support your theory of the case. Refer to specific witnesses and testimony. A fact is only a fact when a specific witness vouches for it or an item of evidence proves it. Avoid giving your personal opinion. Your personal opinion is irrelevant.

Using exhibits and visual aids. Exhibits can do many things. They can enhance the emotional content and persuasive power of a presentation. They can organize complicated factual scenarios or legal concepts in ways mere words cannot. They can provide a refreshing change of pace for the listener that will allow him to refocus his attention on what the advocate has to say. They can also have an emotional impact.

Use analogies and stories that relate to real life. If they are short and they are pertinent, they can make an advocate’s point extremely clear.

Argue strengths. The most successful arguments are those that focus on the strengths of the advocate’s case. If an advocate spends too much time focusing on the weaknesses of the other party’s case, he may convey the feeling to the listener that his own case is not that strong.

Deal with your weaknesses. While an argument should be positive and stress the strengths of an advocate’s case, it should not entirely avoid discussing the weaknesses of the case if they exist. There are two advantages to addressing a case’s weaknesses during argument. First, if an advocate mentions the weaknesses before the opposing party does, he or she diminishes the impact the opposing advocate would make if they raised them first. This is often referred to English speaking courtrooms as, “stealing the opponent’s thunder.” Second, judges are likely to respect the honesty and candor of an advocate who discusses the weaknesses of his case. Respect for the advocate often translates into respect for his argument.

Elements of an Effective Closing Argument

There are a variety of ways to construct an effective closing argument. Of course the structure will depend on the nature and facts of the case and the style of the advocate. Many effective closing arguments however generally follow the structure below:

  1. Introduction
  2. Issues
  3. What really happened and the proof
  4. Basis for guilt/innocence
  5. Conclusion

Introduction

Judges want to hear a clear, concise explanation of what an advocate wants and why he or she wants it. They want to hear it in a way that captures their attention. The advocate should deliver an introduction that does these things using the theory of the case to bind it together.

Example:

Samut Socheeta is on trial here for defending herself against a very large, very drunk man who was trying to kill her. Our law, sensibly, allows a person the right to self-defense. This right to self-defense extends to wives in the same way it extends to husbands, or to friends, or to mere acquaintances. Samut Socheeta acted in self-defense and therefore she must be found not guilty.

Issues

Somewhere, either before or after discussing the facts of the case, the closing should clearly state the issues in a way that the answer is obvious. This is where you emphasize your theory of the case.

Example (prosecution):

To find Samut Socheeta guilty of attempted murder you must answer two simple questions: First, did she intend to kill her husband when she plunged that 10 inch kitchen knife directly into his chest with such force that it snapped the blade. Second, would a person who was truly acting in self-defense behave in the manner she did after the killing – not calling the police or ambulance for five hours?

Defense: There is only one issue in this case: Was Samut Socheeta justified in defending herself against a drunken man twice her size who came into the house screaming that he was going to kill her – a man who had beaten her senseless many times before?

What really happened – the proof.

After hearing the evidence presented in pieces during the trial, the court will want to hear the party’s version of how the pieces fit together to make a believable whole. This should not be a repetition of all of the evidence presented but a presentation of the critical facts supporting an advocate’s case and what those facts mean.

A standard approach to this part of the argument is to tell the court the story from the point of view of the party then move immediately to a discussion of the sources of information that support the story.

Example (defendant): For Samut Socheeta, the evening of July 20, 2004 began in a familiar way. Her husband, the defendant, pushed himself away from the dinner table and announced that he was going out and would not be back until late. She knew that he would be back alright – he would be back drunk, angry and wanting to take out the frustrations of his life on her. She knew that she would be beaten. She just didn’t know how badly, or if this time, she would survive. She waited in fear for hours, until she heard the sound of his steps in the hallway outside.

During this trial you heard Socheeta talk about the life of fear she led. She told you about the many times the defendant beat her up in his drunken rages. You also heard from her neighbors, Mrs. Raneth and Mrs. Tiri. They told you about those many times they heard the defendant come home late at night; they told you about hearing the sound of blows being struck and hearing Socheeta’s voice begging her husband to stop hitting her. From this evidence, you know that Samut was justified in her belief that this time, the defendant would kill her.

The artistry of good closing statement is to weave the facts that support your case into a cohesive, logical, and compelling argument.

Basis for guilt/innocence

It is essential that an advocate spend some time focusing on the areas of the law that are of main importance to the outcome of the case. For the prosecution this often means reminding the court of the legal elements of the offense and discussing how the evidence in the case has proven up each element. For the defense, this usually means singling out certain legal elements necessary to prove the crime and arguing that the prosecution has failed to meet its burden of proof on those elements, or raising an affirmative legal defense and arguing the facts that establish that defense.

Example (prosecution)

Article 279 of the Criminal Code says that a person is guilty of bribery when he 1) hands over to an employee any gift, present, makes a promise to him/her or provides him/her with any benefit; and 2) his purpose is for the latter to perform or to abstain from performing his/her duty, without the knowledge of the employer and without his/her consent. The evidence has shown that the defendant gave property to an employee by providing the employee with many free meals from his restaurant in the period between May and July 2004. The only reasonable inference that can be draw from defendant’s actions is that the defendant’s purpose was to secure the illegitimate benefit in purchasing a car from the employee of a car dealership. This being the case, both elements of the crime have been proven.

Example (defendant)

There is no question that my client hosted Mr. Sophal at his restaurant a few times and that he gave him a few bottles of liquor as gifts. But this is no crime. The law requires that the prosecution prove that my client’s purpose was to secure illegitimate benefits. Where is this proof of purpose? The prosecution has presented no evidence at all of any agreement existing between my client and Mr. Sophal to get a cheaper price for a car in exchange for a few free meals. It has proven no illegal purpose. In fact, the evidence has indicated that my client’s purpose was friendship. He knew Mr. Sophal, he liked him, he acted as a generous host. This is no crime.

Conclusion

The end of the argument should smoothly conclude the advocate’s case. It should remind the court of the advocate’s theory of the case. It should make clear what the advocate is requesting. If possible, it should end on a confident, decisive and dramatic note. It should also end with your request of the court to “find the defendant not guilty”.