Many legal scholars believe that closing arguments are rightly considered the most important phase in a criminal trial. It is the last opportunity defense counsel will have to tip the scale in their favor. Defense attorneys approach closing in different ways, some of them quite stark in their difference.
For example, famed criminal defense attorney Clarence Darrow’s closing arguments were disorganized, sometimes rambling but nevertheless packed with an eloquent mixture of emotional prose and fact-driven science that captivated jurors—one such argument lasted twelve hours in the 1922 infamous Leopold/Loeb murder trial. On the other hand, there was Percy Foreman—the legendary attorney with whom every Houston criminal defense attorney is measured—who utilized long passages of Scripture and Shakespeare to evoke compassion and sympathy for his clients (and who often combed his long mane of hair to distract jurors from the prosecutor’s closing argument).
An effective closing argument should be a compelling summation of the case that reaches both the mind and hearts of jurors before they depart to deliberate. The argument should include but not necessarily be limited to:
- A summary of the evidence;
- Any reasonable inference that can be drawn from the evidence;
- An attack on any holes or weaknesses in the prosecution’s case; and
- A strong plea that the jury either acquit the defendant or return a verdict to a lesser included charge.
A closing argument is not intended to pull victory from the jaws of defeat like Bill Mazeroski’s dramatic 1960 homerun that gave the Pittsburgh Pirates a World Series victory over the New York Yankees. A closing argument is the culmination of an effective jury selection process, penetrating cross-examinations of prosecution witnesses, proper and timely objections, and a coherent presentation of defense evidence. Its most importance objective is to straightforwardly call jurors’ attention to the problems in the prosecution’s case and convice them that the prosecution has not met its high burden of proving guilt beyond a reasonable doubt to the crime charged.
Preparation is the key to an effective closing argument. A defense attorney should include an honest first impression of the case in their client’s file as soon as he agrees to representation. This process should be followed by legal and factual investigation and research to flesh out all the factual, even emotional, contours of the case. These efforts will prove to be a valuable resource by the time the trial starts and closing argument nears. This process will not only allow the defense attorney to become completely familiar with the core of the case but will allow them greater time during the course of the trial to put the prosecution’s case in perspective, especially identifying its factual weaknesses and evidentiary problems that can be exploited during closing.
In a 1995 legal treatise, University of Notre Dame Law Professor James H. Seckinger offered these six suggestions for closing argument preparation:
- Create a closing argument file at the outset;
- Develop evidence to fit the closing argument;
- Prepare a closing argument outline before the trial begins;
- Think about, prepare, and rehearse your closing argument before trial, leaving sufficient flexibility to meet the exigencies of trial;
- Modify your closing argument throughout the trial in response to the record to date;
- Base your closing argument on the issues, the evidence, the burden of proof in the case, and your client’s right to a verdict.
The public record does not reveal whether Clarence Darrow or Percy Foreman did it this way. It’s unlikely that Darrow wrote a 12-hour closing argument before, much less during, the publicity-driven murder trial of Henry Loeb and Richard Leopold; and it is unlikely that the flamboyant Foreman wrote his 4-hour, 54-minute closing argument (the second longest in his career) delivered in Miami’s own 1966 tabloid murder trial of Candice Mossler and Mel Powers—both of whom were acquitted of the brutal murder of Mossler’s multi-millionaire banker husband.
By the end of a criminal trial, most jurors are tired, even emotionally drained from the tedious process of evidence presentation by the prosecution and the defense’s rebuttal to that evidence with its own evidence presentation. When defense counsel stands to present their closing argument, the jury has heard all the evidence, listened to some of the prosecution’s closing argument, and many have formed definite opinions about the guilt or innocence of the defendant. Defense counsel nonetheless must enter the lion’s mouth and speak to the jury in a manner as though they were speaking to each juror individually. Counsel must reach those undecided or uncertain jurors and convince them to keep an open mind, to honor their sworn duty to be fair and impartial and to judge the evidence through the lens of fact, not emotion or bias as they weigh the reasonable doubt standard.
Then sit down and pray for the right outcome.