Wednesday, June 14, 2006

Closing Argument in a Criminal Case - Dinosaur Secrets

By Tom Adler

Since retiring from the practice of law I have lived under the delusion that I learned things worth sharing with up and coming trial lawyers. This has led to some embarrassing moments for my wife who overhears the whispers at parties “Why doesn’t he just give it up already?” But I like my little fantasy. It makes me feel connected to the new lawyers who probably know more about any subject than I ever did. Such is the curse of the dinosaur; I must go on spreading the seeds of my wisdom and annoying people at parties. To those victims I ask for forgiveness and say… “Deal with it”.

So the last witness has testified, the evidence is in and you and the DA have rested. It’s only 2pm and the judge wants to start argument after a 10 minute recess. Before you on counsel table, sits a mass of jumbled papers which you swore you’d keep organized during the trial. Moisture forms on your upper lip as you ponder the 30 minutes the judge has given you to commence your final argument. Your first instinct is to go over everything that happened with the jury---after all they don’t know the case the way you do. You don’t want them to forget anything - Big mistake. Between them, they will remember things you have forgotten and things you’d like to forget and reason out problems that you may never have thought about. Your job is not to go over everything. Your job is to make persuasive sense out of the facts that you need to win.

Since attorney’s notes taken during trial generally track the chronological appearance of the witnesses there is a tendency to rehash the facts, witness by witness, during closing argument. This is generally also a mistake. It insults the jury’s intelligence regarding remembering the facts, it bores the jury and doesn’t result in a persuasive presentation of your defense theory.

Closing argument should start to be formulated during the first client interview and should consist of a theme and perhaps sub-themes. What was it that initially struck you about the case favorably? In criminal law sometimes there’s not much, but you have to make do with what you have. There should be a theme that you develop during the trial. In all likelihood any first positive thoughts you had may very well be the strongest part of the case by the time of trial and should be your theme in your opening statement and during the trial. As soon as you get on your feet for closing argument, immediately restate your theme in a manner designed to get the jury’s attention and raise their sights to a duty higher than the ugly facts before them. Jurors like to feel they are making important decisions. And they will perform with an even higher level of deference to your clients’ case if you lead them there. So you ask, “What the hell are you talking about dinosaur?” Put into practical terms, you should interweave your particular theme with larger issues of fairness, the democratic process, constitutional rights, historical wrongs or other large issues to transport them away from what may be difficult facts in your case. Sometimes this is all you have to go with.

Example 1: (Murder Case-Alibi) – “It’s hard to believe that in our system of justice an innocent person can be convicted of a crime that he didn’t do. But it happens, and in this case, you are charged with the heavy responsibility of seeing that it doesn’t happen here. Until the laws of our universe change a person cannot be in two places at once.”

Example 2: (Reasonable Doubt Case) – “In this case you are going to decide whether the principles that we all have cherished for over 200 years will be preserved in this community. And the principle here in this courtroom is that a person may not be convicted of a crime-- even if you think he’s guilty---if in your mind—you have a reasonable doubt.”

Example 3: (Mental Impairment Defense) – “I like to think that in the society in which you and I live, people who have suffered the horrors of a childhood filled with unwanted brutality may be given the benefit of some degree of understanding in spite of the seemingly needless and cruel act that my client (Young Bob) engaged in.“ (The jury has already determined that the act was needless and cruel. By stating it yourself, you’ve become partners with them and you’re now in a position to have them follow you in the direction you want to go.)

These examples place an important issue in the hands of the jury and instill in them, hopefully, the ability and the power to do the right thing. They will have to vote for something involving the greater good and not just who pulled the trigger. It is the attorney’s role in closing argument to succinctly identify the important issue presented by the client’s case to show the jury why they must vote for the client in order that justice is done. As an old law school professor once said, “There are no small issues – only small lawyers!”

There are three basic ways in which an argument can be organized:
a. The “chronological” argument. Telling a tale from start to finish. Works well for simple factual and legal cases. NOTE: This chronology is of the facts, not the order in which the witnesses testified. In factually complicated cases it is usually helpful to prepare a timeline to have in front of you at trial.
b. The “issue” argument. Better for organizational purposes. Lends itself to interweaving the facts, law and jury instructions.
c. The “politician’s” argument. Bad facts, bad law. Rely on oratorical skills, avoid the issues. Not recommended except in dire circumstances for especially talented attorneys.

a. In your trial notes, mark each area of testimony which you want to use during closing arguments. Put an A (for Argument) in the left column as each thing comes up that will help during closing. Your job will be much easier in preparing the closing. Do the same for your issues. If credibility of witnesses is an issue, put an L (for Lying) in the left hand column of your notes where the witness lied. If the gun is important, put a G when it’s mentioned, etc. At the end of the trial you can gather up the important points quickly this way.
b. Order partial transcripts of important testimony during trial. Blow them up for exhibits in closing.
c. Pull important jury instructions and intersperse them in your argument at logical points. Blow up the important ones.
d. Make sure exhibits are in a place where you don’t have to fumble around looking for them. (Notice glaring judge and yawning jurors when this happens.)
e. Use briefest notes possible. Time spent writing is time not observing jurors and witnesses
f. Vary the speed and tone of your voice. Did Henry Kissinger ever win a trial?
g. Use as much of the courtroom as the judge will allow.
h. Use your hands and the exhibits for emphasis.
i. Don’t avoid the bad facts – they’ll come back to haunt you.

There are cases discussing what the boundaries are for closing argument. Develop a form brief that you can submit to the court in any trial which sets forth this law. By filing this with the court and serving a copy on the prosecutor prior to closing argument, the prosecutor may be more cautious in his argument.

Be in charge of the presentation of your case and avoid just fending off the onslaught of the prosecution and responding to opposing counsel. Along these same lines don’t let the judge run over you. It is not the judge’s case, it’s your case. CAVEAT: Never take on the judge in front of the jury. You will lose! If the judge is killing you in front of the jury, ask for a recess, take a deep breath and then respectfully state your position on the record with a court reporter.

EXAMPLE: “Your Honor, I assure you that I am entirely capable of losing this case all by myself. I do not require your help. Please stop making those comments about my case in front of the jury or I’ll be forced to ask for a mistrial and to challenge you for cause and I would prefer to not do that”. The judge will then deny or explain or threaten or accuse, etc. Unless it is absolutely necessary to preserve the record, do not respond. Politely say “I just wanted the record to reflect my position. Thank you, your Honor.” You’ll be amazed how much better the cold record will look without any whining and in most instances, the judge will get the message even though he may not like it or you.

Trial work is not for the faint-hearted and in the long run you will gain a judge’s respect if you remain cool (i.e. no wounded looks at the jury or other histrionics). When you’re really angry at what the judge is doing. address your comments with the universally recognized code words “With all due respect…” English translation,”Listen asshole…..”

To a large degree we are who we are. A great deal has been written about trial work, including how to dress, how to speak, what to say, how and where to stand, etc., all of which have some degree of value in that there are always things you can do to improve your presentation. The basic rules, however, are the most important and are the most often violated:

1. Be yourself.

2. Believe in your case and your client. (But that’s a whole different subject.)

3. Get to the point and state it forcefully.

4. Use simple words and simple sentences.

5. Never mislead the judge or jury.

6. Start strong, finish strong.

7. Sit down when you’ve made your point.

Attorneys sometimes assume that jurors are machines who digest the facts and the law and then make their decisions based on that. Perhaps it is due to the jurors not interacting with the attorneys during the trial. Because they don’t speak they become robot like and appear to be impartial and impassive. The reality is that they are watching you very closely and judging you as any other judgments are made outside the artificial surrounding of a courtroom. They look at you and want to know what you are really like and whether you believe in your case. If you appear slick, evasive or use lawyer’s words, your argument will fall on deaf ears.

Other than the seven points listed above there is no single style that you must fit into. Lawyers come in all shapes, sizes and styles. Some are intellectual, others “country bumpkins.” Whatever your style, it has to relate personally to the jurors. Honesty is the surest way to disarm jurors regardless of your style.

Example: “I got up this morning and looked in the mirror and saw this zit on my nose and thought – “Gee, what a great way for me to start closing argument.”

What juror can’t identify with this problem? On the other hand, if a comment like this doesn’t fit into your “persona” or “style” don’t say it! Use a form of honesty that does. Honesty on collateral issues effects jurors’ perception of you as an honest person. Along the same lines, self-deprecation is one of the best ways to connect with the jury.

The entire purpose of developing your courtroom style is to enable you to connect with the jury. To that end eye contact is extremely important. At every opportunity attempt eye contact with jurors at key times. Often there are certain answers given during voir dire which will relate a juror’s personal experience to a portion of the trial. When that testimony comes up, look at the juror so that he or she knows that you recall their own situation which related to the trial testimony. On the other hand, eye contact if overdone or artificial can make the jurors uncomfortable.

In a visual society such as ours demonstrative aids during trial are essential. Evidence presented during trial can, of course, be shown to the jury during argument and in many circumstances compilation of the evidence presented, if not misleading, will be allowed to be used during argument. Some of the demonstrative aids at your disposal are:

1. Writing or drawing on the blackboard as you speak.
2. Enlargement or projection of trial transcripts, photographs, jury instruction, etc.
3. Computer graphic programs, Power Point, etc.
4. Computer animations reconstructing the crime.
5. Video or audio tape.
6. The exhibits themselves.
7. Dummies or live persons.

If there is any issue to whether the exhibit is permissible to use, clear it with the court prior to argument. Interruptions during closing to resolve admissibility issues can detract from your argument and if the court rules against you, the jury will think that you’ve done something improper.

Exhibits should be large and, where possible, graphically exciting, i.e., colors, etc. Large exhibits equate with an important issue.

Crucial jury instructions should be enlarged. When you arrive at the portion of the argument where the instruction logically can be discussed put it on an easel and point to the important language as you go over it. A hi-liter works even better and can be done in advance.

Many times during trial, facts favorable to you or inconsistencies in testimony are impossible to explain by opposing counsel. During closing argument raise these facts issues with a challenge at the end.

Example: “Mr. Jones testified under oath that he was in his office at 10:00 pm and yet the office records showed that he had left at 9:30 pm. After I resume my seat I’m going to wait anxiously with you folks to hear how opposing counsel is going to explain away this obvious false testimony.”

Of course you have to be sure there is no logical explanation. This puts opposing counsel in a position of either a) not responding at all or b) making up an explanation that is not logical. Either way will be unsatisfactory to the jury and will put the opposing counsel in an awkward position.

Prosecutors do not have two new opportunities to argue. The second argument is a chance for them to rebut anything that you argued. Many prosecutors, however, withhold large portions of their argument for rebuttal. Don’t allow this to go unchallenged. Rise up and object as soon as the new argument is made in rebuttal and allude to the fact that you wouldn’t have an opportunity to respond to this new argument and you might also add “Perhaps counsel wouldn’t object to my just clarifying that one point at the conclusion of his remarks”. Watch the jury glower at the prosecutor when they say no. (Don’t tell anyone the dinosaur told you that!)

Finally, on the issue of grabbing the reins, here’s a story from the olden days when you could smoke during trials. The lawyer straightened out a paper clip and ran it through the length of his cigar and as he puffed on it during a crucial phase of the trial the ash never fell. The longer the ash the more jurors couldn’t keep their eyes off of it and thus, opposing counsel’s damaging evidence. There are lots of variations of this however you had better have some courtroom experience and a blank habeas form in your pocket before wandering into uncharted paths.

So there it is… all of the outdated knowledge I have on the subject. Well, maybe not all.

©Tom Adler 2006

No comments: